author: Mr. Presiding Justice Taylor

text:
    In re Estate of Francis Hamilton Riddel. Appeal of Henry W. Leman, Guardian, Appellant, v. Francis Hamilton Riddel, Appellee.
    Gen. No. 31,725.
    1. Wills — what constitutes a specific bequest. A bequest of “the household fittings and furniture and all personal property contained ’ ’ in a house in a named town is a specific bequest.

      2. Wills — what constitutes a general devise. A devise in trust of “.all the rest and residue of my estate, real, personal and mixed” is a general devise.
    3. Estates of decedents — when property in residuary clause is first to he charged with debts. As between particular personal property specially bequeathed, and real and other property which is devised in general terms to a trustee in a general, omnibus residuary clause, the property in the residuary clause is first to be charged with the debts of the estate.
    4. Estates of decedents — when personal estate not first applied to payment of debts. It is a general rule that the personal estate of a testator shall be primarily applied in discharge of the personal debts, but a testator may, by appropriate expression, give it immunity over the real estate.
    5. GuAKDiANSHip--TO7tem payments of guardian by authority subject to ward’s objection on final accounting. The fact that a guardian of a minor, as executor, acts under the orders of the probate court in bringing personal property, which represents a specific bequest to the minor, into the jurisdiction, and that the court authorizes him, as guardian, to credit himself in his guardianship accounts with the expenditure of such sum in payment of the debts of the testator, does not prevent or estop the minor from objecting to the guardian’s final account containing said credit and to require the surcharging of the account with the payment, particularly where the minor’s rights are in charge of one acting in the triple capacity of executor, trustee and guardian.
    6. Probate courts — jurisdiction to compel accounting by guardian. The probate court of Cook county has jurisdiction to compel a guardian to file a correct account of his ward’s estate.
    7. Probate courts — equitable powers. The probate court of Cook county has equitable powers.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding.
    Heard in the second division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed January 18, 1928.
    Rehearing denied January 30, 1928.
    Frank H. Culver, for appellant.
    Newman, Poppenhusen, Stern & Johnston, for appellee; Edward R. Johnston and Henry J. Brandt, of counsel.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is an appeal by Henry W. Leman, guardian of Francis Hamilton Riddel, a minor, from an order of the circuit court confirming an order of the probate court which sustained objections of the minor to the final account and report of the guardian, and directed the guardian to file an amended final account and report, accounting and including therein, as an asset of the minor’s estate, the claim of the guardian against the trustee under the last will of Bessie H. L. Riddel, deceased, in the sum of $4,360.70, with interest at five per cent from July 10,1913, to the date of the amended final account.

Bessie H. L. Riddel, hereinafter called the testatrix, the mother of Francis Hamilton Riddel, a minor, died in Chicago on November 13, 1912, leaving a last will and testament, with a codicil attached, which was duly proved and admitted to probate by the probate court of Cook county on January 17, 1913. It contained the following:

“Second: I hereby give, devise and bequeath to my beloved son, Francis Hamilton Riddel * * * his heirs and assigns forever, the premises, owned by me, with the household fittings and furniture and all personal property contained therein, at the date of my decease, and located in the town of Tiverton, Newport county and State of Rhode Island * * * provided I have not, prior to my decease, sold and disposed of the same.
“Third: All the rest and residue of my estate, real, personal and mixed, of which I may die seized, in expectancy inherited, and to be inherited, including all lapses of legacies in this will provided, I do hereby give, devise and bequeath to Henry W. Leman * * * in trust, however, for the uses and purposes following.”

In a further clause, by virtue of which Henry W. Leman became trustee, the will provided as follows:

“After the payment of the necessary expenses of support of any child or children of my body, who survive me and of all my just debts and funeral expenses and, after the payment of the costs of administration of my estate, and also after the payment of all taxes and expenses of said Trust Estate * * * I hereby authorize and empower and direct my said trustee, out of the net income arising from my trust estate, to expend for and pay to the child or children born of my body me surviving * * * an annual sum * * * as in the opinion of my trustee, shall be deemed just. ’ ’

By the codicil, the testatrix revoked the second clause above mentioned “in so far as it gives, devises and bequeaths to my beloved son, Francis Hamilton Biddel, his heirs and- assigns, forever, the premises, owned by me, and located in the Town of Tiverton,” and devised them to Henry W. Leman, in trust, under the terms of the trust created in the will.

The will appointed Henry W. Leman to be executor, to be guardian of the minor son of the testatrix, hereinafter called the ward, and made him trustee of the greater part of the estate of the testatrix, which was devised to him in the residuary clause.

The.will gave large powers and practically unlimited discretion to Henry W. Leman in the administration of the estate provided for in the will, and in the distribution of the income. The will provided as follows:

“It is my wish, notwithstanding, that he be given greater latitude in the compensation for his services as trustee and greater scope and powers in the administration of the trust estate than are usually conferred and bestowed upon trustees. It is, therefore, my wish that this will be construed liberally and broadly in such respects.”

Although it is admitted on behalf of the guardian that the testatrix “bequeathed to her son Francis Hamilton Riddel certain personal property and household fittings and furniture contained in her .summer home at Tiverton, Rhode Island,” and that she then, in a residuary clause, devised and bequeathed all the “rest and residue” of her estate, real, personal and mixed to Henry W. Leman, in trust, largely for the support of her said son Francis Hamilton Riddel, and for other purposes, with remainders over, upon certain-contingencies ; yet, it is contended by the guardian that his final report, an account in the probate court, ought to have been approved, although its approval would mean that the sum of $4,360.70, the proceeds of the sale of the personal property, located at Tiverton, would be credited to him, the guardian, as having been paid in liquidation of the debts proved against the estate of the testatrix and certain expenses of an ancillary administration.

The question arises, then, whether, as between particular personal property specially bequeathed, and real and other property which is devised in general terms to a trustee in a general, omnibus residuary clause, the property in the residuary" clause is first to be charged with the debts of the estate; in other words, does the property in a general residuary clause of the will, following a specific legacy, bear the burden of the debts of the estate, or must they be borne altogether or ratably by the specific legacy merely because the subject matter of the legacy is personal property?

This was a specific legacy because it was expressly designated and segregated physical personal property. Schouler on Wills, 5th Ed. p. 1534, citing 1 Roper, Legacies, 170 Wms. Exrs. 1158. In 141 N. Y. S. 705, it was held that a bequest of furniture in a residence is a specific legacy. On the other hand, the bequest and devise in the residuary clause, “All the rest and residue of my estate, real, personal and mixed, of which I may die seized * * * I do hereby give, devise and bequeath to Henry W. Leman,” is wholly and expressly general. Schouler says,

“The bequest of all one’s personal estate, or the devise and bequest of all the residue, both, personal and real, cannot be treated as specific; but such a disposition, from its own terms, is general and residuary, and subject to the usual payment and satisfaction of debts and legacies.” Citing Wms. Exrs. 1172; Fairer v. Park, L. R. 3, Ch. D. 309.

Here, the bequest to the minor, in our judgment, being specific and the residuary bequest and devise to the trustee being general, it follows that, although as a rule general legacies must be paid out of the personal property until it is exhausted before recourse can be had to the real estate (Haynes v. McDonald, 252 Ill. 236, 240), the specific bequest to the minor is not subject to the debts until the general residuary estate is exhausted.

The will, as we analyze and interpret it, shows quite convincingly that the intention was to put the burden of the debt of the estate primarily on the property included in the general residuary clause. It is true, as stated above, that it is a general rule that the personal estate shall be primarily applied in discharge of the personal debts, but a testator may by appropriate expression give it immunity over the real estate; and, as said in McCullom v. Chidester, 63 Ill. 477, “The exemption may be manifested by plain intention or by making of the personalty a specific legacy.” Reid v. Corrigan, 143 Ill. 402. In Fenwick v. Chapman, 9 Pet. (U. S.) 461, 470, the court said,

“The testator may exempt a part of it by making it a particular legacy; or the whole of it, either by express words,, or plain manifest intention, or by giving it as a specific legacy.”

And in Lewis v. Sedgwick, 223 Ill. 213, 222, the court said,

“The general rule has always been that a specific legacy is a gift of a specific part of testator’s estate, identified and distinguished from all things of the same kind, and can only be satisfied by the delivery of the particular thing, and that if the estate for any reason should turn out to be less than the testator anticipated, or if for any reason there is required an abatement as to any of the legacies, general legacies or residuary funds must first be abated before any abatement of the specific legacies could be required.”

In Mears v. Strale, 228 Ill. App. 519, the contest was between a specific bequest and a specific devise, which is not the case here.

It is further contended on behalf of the guardian that, by reason of several orders of the probate court pursuant to which he sold the personal property located at Tiverton and applied the net proceeds in the payment of the debt of the estate, his final account, to which the minor made objection, should have been approved.

The record shows that Leman, as guardian, inventoried the personal property located at Tiverton, and presented his petition to the probate court, asking for instructions in regard to his duties as to the Tiverton personal property; that the probate court entered an order that he,- as executor, should proceed to Tiverton and take possession of it, and, if in his judgment such property could be better disposed of there than in Cook county, he should take out ancillary administration in Rhode Island, and bring the proceeds of the Tiverton property to the probate court of Cook county; that he, as executor, obeyed the order of the probate court and sold the Tiverton- property under ancillary administration for $4,360.70, and brought the net remainder into the probate court of Cook county, that the probate court of Cook county was then informed that the debts of the estate, which had been proved, aggregated approximately $50,000, and that the personal property of the estate of the deceased was wholly insufficient to pay them, and that the real estate would have to be sold to pay such debts; that he then, as executor, after presenting those facts to the probate court, asked direction and instruction as to the disposition of the net proceeds of the personal property at Tiverton; that an order was entered in the probate court for the filing of his receipt as executor, in the sum of $4,360.70, and that he be given leave as guardian to expend the sum of $4,360.70 of the minor’s estate in payment, as far as the same would apply, of the debts against the estate of the deceased, and to credit himself with such payment in his guardianship accounts; that the order contained the words, “This to prevent the sale of the ward’s real estate.”

It is argued that the order of the probate court, above mentioned, was made in order to prevent the sale of the ward’s real estate. We do not find, however, that the will provided that the real estate should ever become the property of the ward; but, however that may be, the record shows that the orders were obtained by Leman when he was acting in the triple capacity of executor, trustee and guardian, and were subject to objection upon his making a final account and report.

Counsel for the guardian* urge that the orders mentioned above gave him immunity, and sanctioned the sequestration of the minor’s specific legacy in part payment of the debts of the estate. The law, however, particularly in such a case as this, where the minor’s, or ward’s rights are in charge of a guardian who is both executor and trustee, creates no such estoppel, and does not, as stated above, prevent the minor from surcharging the accounts rendered by the guardian in his final report. Bliss v. Seaman, 165 Ill. 422.

It is further contended on behalf of the guardian that the probate court had no jurisdiction of the matters involved, and that if the minor were entitled to be paid the $4,360.70 claimed to be due him, he should have brought suit in equity. The record shows, however, that the minor did not ask the probate court for a money judgment against the guardian. The relief he sought was that the guardian be compelled to file a correct account, and that was a matter of which the probate court alone had jurisdiction. It may be true that the order of the probate court, when followed by the guardian, will not, in and of itself, give the ward substantial relief. That is no sufficient reason, however, why the order of the probate court should not be obeyed. Further, the probate court possesses equitable powers. Bliss v. Seaman, 165 Ill. 422, 427.

For the reasons above stated, we are of the opinion that the order of the probate court that the guardian file an amended final report, accounting for and charging himself with the sum of $4,360.70, with interest thereon, at the statutory rate, from the date when said sum was so paid out and expended by said guardian, should be affirmed.

Affirmed.

Holdom and Wilson, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    First Trust and Savings Bank, Trustee Under the Will of Dwight F. Cameron, Appellant, v. John Raklios, Appellee.
    Gen. No. 31,775.
    1. Landlord and tenant — lessee’s covenants running with the land. Covenants in a lease that the lessee will not permit the premises to be used for an illegal purpose, and that he will sublet only to a reputable subtenant, run with the land and are binding upon the subtenant.
    2. Landlord and tenant — when possession by Federal officers is possession of tenant. Possession of leased premises by Federal officers by reason of the operation of an illicit still by. the subtenant was the possession of the tenant, so far as his obligation to pay rent to the landlord is concerned.

      3. Landlord and tenant — when failure of landlord to repair after fire is excused. Failure of a landlord to make repairs within the time specified in the lease, after the premises becoming untenantable by fire cannot be successfully set up by the tenant to a suit upon the lease for rent, where the tenant covenanted not to permit the premises to be used for an illegal purpose and that he would sublet only to a reputable subtenant, and the landlord is prevented from making repairs by the possession of the premises by Federal officers by reason of the operation of an illicit still by the subtenant, although the tenant did not know of the illicit operation.
    Appeal by plaintiff from the Municipal Court of Chicago; the Hon. Charles F. McKinley, Judge, presiding.
    Heard in the third division of this court for the first district at the March term,. 1927.
    Reversed and remanded with directions.
    Opinion filed January 18, 1928.
    Packard, Peckham & Barnes, for appellant.
    Rose & Symmes, for appellee.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

On June 22, 1926, the First Trust and Savings Bank, trustee under the will of Dwight F. Cameron, deceased, as plaintiff, filed in the municipal court a statement of claim and a cognovit, based on a written lease of certain premises on Michigan avenue, and, on June 23, 1926, obtained a judgment against John Raklios, the defendant, in the sum of $1,062.24, for rent for the months of April, May and June, 1926, at $350 per month, together with interest and costs.

Pursuant to a motion and leave given by the court, the defendant, on July 23, filed a petition asking that the judgment be vacated. The petition alleged, substantially, that the lease, which was dated March 13, 1924, provided that if the premises should be rendered untenantable by fire or other casualty, the lessor may, at his option, terminate this lease, or repair said premises within thirty days, and failing so to do, or upon the destruction of said premises by fire, the term hereby created shall cease and determine; that at a period of time more than thirty days prior to the first day of April, A. D. 1926, the said premises were rendered untenantable by fire and other casualty, and that the lessor in the said lease, the plaintiff in the said cause, has not repaired the said premises since they were so rendered untenantable as aforesaid, and that they have continuously since that time, and now are, untenantable; and that as a result thereof the term created by said lease ceased and determined prior to the said month of April; and that on the first day of the said month of April the said term was not in existence, and never since that time has been, and is not now; that when the term ceased and terminated, as aforesaid, the lease became and was and continued to be of no effect and that the plaintiff had no power under it to confess judgment.

On August 5, 1926, an order was entered giving the defendant leave to make a defense and ordering a trial, and that the judgment stand as security until the further order of the court; also, providing that the petition, above set forth, stand as an affidavit of merits.

There was a trial before the court, without a jury, and on January 8, 1927, an order was entered vacating and setting aside the judgment by confession of June 23, 1926, and giving judgment for the defendant for costs. This appeal is by the plaintiff from that judgment.

Inasmuch as the record contains over 1,000 pages, it is not reasonably practicable to state here more than the salient facts. ■

On March 13,1924, the plaintiff leased, in writing, to the defendant, for restaurant purposes only, the premises known as 2337-2339 S. Michigan avenue, Chicago, in what is commonly called “Automobile Row,” from May 1, 1924, until April 30, 1929, for $20,700, payable in monthly instalments of $350. The premises were vacant from January 29, 1925, to the end of January, 1926. The defendant himself never occupied the premises, either for a restaurant, or any other purpose.

The lease contained the following provision:

“In case said premises shall be rendered untenantable by fire or other casualty, the lessor may, at his option, terminate this lease, or repair said premises within thirty days, and failing so to do, or upon the destruction of said premises by fire, the term hereby created shall cease and determine.”

The lease also provided that the lessee would not permit said premises “to be used for any unlawful purpose or purposes that will injure the reputation of the same, or of the building of which they are a part. ’ ’ On the subject of subletting, the lease provided as' follows:

“The lessee shall have the right to sublet the demised premises to persons or concerns engaged in any reputable business including those engaged in the automobile business and kindred lines. If he attempts to sublet the premises he shall first attempt to secure a subtenant engaged in a business other than the automobile business. Failing in this he may then attempt to secure a subtenant engaged in the automobile or kindred business.”

On February 1,1926, the defendant sublet the premises, in writing, to one Morris Blum for radio purposes only, Blum’s term to expire concurrently with that of the original lease. Blum’s rent, according to the defendant, was $350 a month. A sign, “Michigan Radio Co. ’ ’ was put on the building.

The premises in question consisted of a lot 25 by 170 feet, and a three-story building, which wás originally an English basement residence. Prior to -the time of the original lease, the building, had been reconstructed to meet the requirements of, so-called, Automobile Bow. After the premises were sublet to Blum, he put a radio display in the window, consisting of three cabinets.

On March 26, 1926, a fire occurred on the premises, and, on March 27, pursuant to a search warrant, the premises were entered and custodians, appointed by . the United States marshal, placed in charge, and, pursuant to the warrant, the United States marshal seizéd, upon the premises, the following:

1 500 gal. Still and all its attachments.
1 Upright Steam Boiler.
1 Chicago Truck.
1 Ford Truck.
1 Drum of Aleo.
30 5 gal. cans Aleo.
30 150 gal. Tanks.

The floor of the building was partitioned into four different spaces, the first was about 25 feet, separated from the second by a wooden partition, running to the ceiling; the second was about 40 feet deep, and separated from the third by a second wooden partition of a temporary character. Beyond that was a space of about 15 feet, which was separated from the fourth space by a plaster partition, with double sliding doors. Beyond that was the rear part, which opened out through a sliding door at the east end into the alley. A large freight hand elevator led from the main floor to the second story. Both the second and the third floors were neglected and dilapidated. The two delivery trucks that were taken under the search warrant were in the rear compartment on the first floor.

The evidence of Stanley, a government inspector, who took possession of the premises on March 26, under instructions from the United States marshal, and who remained as custodian from that time until June 2, is to the following effect: That in the first space there was a showroom with some radio apparatus-three cabinets; that there was nothing else there in the way of radio apparatus; that they were in the window; that the showroom, back to where the first wooden partition was, was in fairly good condition, with no signs of fire; that the first partition was down; that in the second space, where the distillery was, there was a hole in the ceiling 15 feet across that had been burned through; that ‘1 There were appliances in there for the making of alcohol,” “a 75-gallon copper kettle, which was part of the still to which the heat was applied”; that in one corner of the space, there was a storage tank of 50-gallons capacity, and in another part of the space, a condenser, with a copper coil inside; that the whole apparatus constituted a "still”; that there was alcohol on the premises, some in the pipes of the still; that the still was all connected up, and had been damaged only slightly; that in the third space there was no fire damage; that the furnace was back of what has been described as the stillroom in the basement; that in the same room there was a steam boiler.

Saturday'morning, the day after the fire, one Yrooman, the plaintiff’s outside renting man, went to the premises, met a number of officers there, and was told that he could not go through the building, that it was in the hands of the Prohibition Department, and referred him to a man named Donohue, of the Prohibition Enforcing Office in the Transportation Building. He went to sée Donohue, and told him that he desired to make arrangements to have the necessary repairs and alterations made, and Donohue said, "It is in our hands now, and we are not out, and the marshal is going to take possession.” Yrooman testified that the marshal’s office granted him the privilege of putting in the plate glass, and making certain other repairs that they could make at that time; that later, he talked with a custodian on the premises, and told him that they were trying to make, arrangements to start their repairs; that the custodian said they could not do anything without an order from the marshal.

On March 27, custodians ‘ were appointed by the United States marshal, and placed in charge. They received instructions to lock the doors, and undertook to keep the evidence on the premises intact. Oros, a United States marshal, testified that he took possession in the name of the government, and that there were two sets of two custodians, each with a 12-hour shift.

On April 28,1926, a libel for the condemnation of the distillery apparatus and the alcohol on the premises was filed, which alleged that alcohol was being distilled, without taxes, -in violation of the Revenue Law. The next day a monition was issued, which commanded the marshal to attach the articles described, and to detain them in his custody until the further order of the court. The marshal made return that he had attached the articles described and had them in his custody, and stored on the premises in question. A judgment of condemnation, forfeiture, destruction and sale was entered on June 16, 1926; and an order approving the sale was entered on July 3, 1926. The last custodian was not withdrawn until July 10, 1926.

Immediately after the fire, the landlord’s agent, Read, went to the premises and was refused admission unless he got authority from the marshal’s office. The next day he obtained a letter from the marshal authorizing the custodian to permit him, Read, to. enter “the building to make inspection for insurance companies interested in policies, and for no other purpose.” That letter was signed on behalf of the United States marshal. The letter was presented and used, and inspection made as to immediate necessary repairs. Permission was then given by the marshal’s office as follows : “Further permit is given to repair skylights, doors and windows, if doné under supervision of custodians.” That work, to protect the premises against the weather, was done by Read’s men about April 16, and completed in about four or five days. • The emergency repairs, making the building weather proof, were finished about April 21. The evidence of Read is that he saw Mr. Pinkerton of the Government Office, and asked him whether he could get in to make repairs on the building; that Pinkerton told him he could not tell for several days whether they were going to take their men off or not; that the first of July was the last time he was at Pinkerton’s office; that on July 15, Pinkerton, a deputy marshal, told them that they were through, and that it was all right for them to go ahead with the work; that they then began work, and on August 12, 1926, the work of repairing was-completed.

At the close of the trial, the learned trial judge made certain findings of fact, among them the following:

(a) That the only legitimate use that was being made of the premises at the time of the fire was confined to the space between the front of the premises and the first wooden partition, and there was no damage by fire to that portion of the premises;
(b) That there was an illicit still being operated on the premises at the time of the fire, and for that reason the premises containing the illegal apparatus were taken possession of by the United States marshal and his custodians from March 27, 1926, the day after the fire, and retained up to July 10,1926, continuously; that he denied admission to the representatives of the landlord for the purpose of making repairs during all of that period, and that the denial of entrance to the landlord, by the officers of the law, was the sole reason why the repairs were not made within 30 days following the fire, and that as soon as the landlord was given permission he entered and made the necessary repairs within 30 days thereafter;
(c) That after the fire the subtenant of the- premises made no attempt to continue the sale of radio supplies which was the only apparently legitimate portion of his business, but disappeared, although there is no reason why he might not have continued with this radio business so far as the damage to the building from any fire was concerned,

The trial judge found as a matter of law:

(a) That the covenant binding the tenant not to permit the premises to be used for an unlawful purpose was a covenant running with the land; that the defendant was bound by the action of his subtenant in that regard, irrespective of whether he knew of such unlawful use or not.
(b) That a judgment in a libel proceeding, under the Revenue and Prohibition Laws of the United States for the sale of property on the ground that it constituted an illicit still, is a judgment in rem, binding upon all the world, and fixes the status of such property.
(c) That the covenant that the defendant shall have the right to sublease the premises to any person engaged in any reputable business, did not permit a leasing to one who constructs or conducts an illicit still therein, whether the defendant was aware of such use or not.
(d) That the declarations and conversations between the United States marshal, or his representatives, and the representatives of the plaintiff, both oral and written, during the period that the premises were in the custody of the law, are admissible as tending to establish the reason why the repairs were not made in 30 days, which is an essential part of the plaintiff’s contention.

A special interrogatory, “Were the premises leased by the plaintiff to the defendant by the lease in evidence in this case rendered untenantable by fire or other casualty on March 26, 1926?” was submitted to the court, and was answered in the affirmative; and a special interrogatory, “Were the said premises by the plaintiff repaired within thirty days after they were rendered untenantable?” was answered in the negative, but with the qualification that they were rendered tenantable within 30 days after the plaintiff was permitted by the United States marshal to enter and make the necessary repairs.

The court, however, refused to hold as a proposition of law that the seizure and holding of the premises by the United States marshal, and his refusing to allow the plaintiff to make the necessary repairs on the inside of the building, were the direct and natural consequences of .the acts of the subtenant, and that the defendant was not in a position to insist that the plaintiff must have litigated the legality of the marshal’s holding the premises, and the plaintiff was under no duty to have litigated that question as a prerequisite to his claiming an extension of his time to repair on account of the marshal’s holding.

It is the theory of the plaintiff that the defendant, being responsible for the presence of the United States marshal, was the sole cause of the landlord’s failure to repair within 30 days, and the premises being restored within 30 days after the marshal withdrew, the plaintiff was entitled to the judgment which he obtained by confession, and that the trial judge erred in setting it aside.

On the other hand, it is the theory of the defendant that he sublet the premises for radio purposes to Blum, and had the right to do so; that he never covenanted to prevent the premises from being used for an unlawful purpose; that he simply covenanted that he would not permit them to be used, and if he had no knowledge that they were so used, he was not chargeable with having permitted them to be so used; and that he was not responsible for the presence of the United States marshal on the premises.

In the view we take of it, the chief question in the case upon this appeal is whether the possession of the premises by the officers of the Federal Government, by reason of the search warrant and libel, as the result of the violation of the law by the defendant and his subtenant, can successfully be set up and maintained by the defendant as a defense to a suit upon the lease for rent; in other words, to put the case bluntly, may the defendant profit by, what seems to be, his own wrong?

As to the responsibility of the defendant for the acts of his subtenant: It is urged for the defendant that by the lease he did not covenant to prevent the premises from being used for an unlawful purpose; that “he simply covenanted that he would not permit them to be so used,” and that “not knowing, he could not permit.” That, in our judgment, considering the facts in this case, is unsound. The defendant was bound by a clause of the lease which ran with the land and was binding upon the subtenant to the effect that the premises should not be sublet to other than a reputable tenant, and should not be used for any unlawful purpose; yet, in violation of that obligation, he sublet the premises to one who, according to the evidence, pretended to run a radio business on the premises, while, in fact, that pretense was merely a cover for the operation of an illicit still. What the contents of the sublease were is not shown, but even without that, there is no doubt that the covenant in the original lease against the illegal use of the premises ran with the land and was binding upon the subtenant. In Miller v. Prescott, 163 Mass. 12, 39 N. E. 409, where the word “suffer” was being considered, the court said: “It may not be reasonable to hold that the covenant makes the lessee liable for an unlawful use of the property by trespassers, but he may well be held to ‘suffer’ unlawful use of the property if he does not take effectual measures to prevent such a use by those who occupy by his authority.”

And in Lubliner v. Gaston, 243 Ill. App. 627 (not reported in full), this court said, considering the words, “will not permit said premises to be used for any unlawful purpose,” “It is the law that if the terms of a lease between the plaintiff and the defendant are violated by the defendant’s sub-tenants, the defendant is responsible therefor, whether or not he knew of such violation. Wheeler v. Earle, 59 Mass. 31. In the latter case, the court said, ‘By creating sub-tenants, the original lessee puts them in possession of the premises, and being thus in under him, their acts, if in violation of the condition of the lease, will cause a forfeiture. ’ Burke v. Bryant, 128 Atl. 821. ’ ’

It is urged for the defendant, however, that even though he were held responsible for the acts of his subtenant, the plaintiff was not prevented from making repairs by any governmental body, or by- the act of the defendant, and that, consequently, the lease terminated 30 days after the time when he, the defendant, claims the premises were rendered untenantable by the fire. The trial judge found, and we think the evidence supports his finding, that, as far as the subtenant’s use of the premises was concerned, they were not rendered untenantable by the fire, and as to the inhibition of entry by the act of the defendant, as we have already intimated, it was his conduct, through his subtenant, for whom he was responsible, that kept the plaintiff out.

Further, the possession of the marshal, as far as the landlord was concerned, was the possession of the defendant. The plaintiff endeavored to gain possession to" make what repairs, if any, were necessary, but the conduct of the defendant, through the illegal acts of his sublessee, brought the officers of the law into the premises, and they took charge, not directly as against the plaintiff, but as against the defendant, who was the lessee and under the lease owned all the possessory rights of the premises. If a receiver of the defendant had taken possession, the lease would still stand and rent would accrue, and if there were no lease, he would be liable for use and occupation.

The denial of access, to the plaintiff, for the purpose of discovering the extent of the damage, caused by the fire and to make repairs was, in the eyes of the law, a denial by the defendant. And the result of that was that the plaintiff was entitled, for the purpose of making repairs, at least, to 30 days after July 15, 1926. Such, we think, in view of the evidence, is a fair interpretation of the lease. The construction contended for by the defendant would permit him to avoid an obligation through his own wrong (Griffin v. American Gold Min. Co., 123 Fed. 283), i. e., solely by reason of illegal acts for which he was, at least, civilly responsible. It is true, the plaintiff by appropriate litigation might have endeavored to oust the custodians, but there was no obligation on him to do so; in fact, it was more properly the right and duty of the defendant, who under the lease owned, as said above, all the possessory rights. To say, therefore, that the 30 days provided for in the lease began to run immediately after the fire is erroneous. On the other hand, that time could not reasonably be said to begin to run until after the custodians left the premises; for prior to that time, in the eyes of the law, the defendant was responsible for the possession of the premises, and his acts prevented the plaintiff’s entry.

The judgment will be reversed and the cause remanded with directions to expunge the order of January 8,1927, and confirming the judgment of June 23, 1926, in favor of the plaintiff.

Reversed and remanded with directions.

Holdom and Wilson, JJ., concur.


text:
    In re Estate of Louis Danne, Deceased. Adele Cooper et al., Appellants, v. Gertrude Kryger et al., Appellees.
    Gen. No. 31,851.

      Wills — direction to keep estate intact as affecting vesting of legacy. Under the residuary clause of a will giving a part of the residuary estate to a brother with the words “should my brother i:" * * pass on his share reverts to my estate,” the interest of the brother is not prevented from vesting immediately at the testator’s death, the brother being alive, by directions in the will that the estate shall be kept intact for three year's and that the trustee or executor is to sell the real estate, where it does not clearly appear, upon a consideration of the entire will, that it was not the intention of the testator that the remainder interest of the brother should vest at the testator’s death.
    Appeal by plaintiffs from the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding.
    Heard in the third division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed January 18, 1928.
    Robert E. Hogan, for Adele D. Cooper, appellant.
    Barbie Blumenthal, for Louis Emil Danne and Reginald Danne, appellants.
    Sidney N. Ware, for appellees.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

In the matter of the estate of Louis Danne, deceased, the probate court, on May 20, 1926, passing on the final account of the executors, entered an order, which, among other things, provided that certain funds in the hands of the executors should be distributed as follows: $18,588.91 to Adele D. Cooper, $5,004.20 to Gertrude Kryger and $5,004.21 to Julia Danne Curren. On appeal to the circuit court, the order of the probate court was affirmed. This appeal is from the judgment of the circuit court.

The testator, Louis Danne, died on May 21, 1918, leaving a last will and testament. At the time of his death, he left him surviving as his only heirs at law and next of kin, Adele D. Cooper, his sister, and Emil Danne, his brother. In the fall of the year 1918, Emil Danne, the brother of the testator, died, leaving him surviving as his only heirs at law and next of kin, his son, Jay Danne, and his daughter, Gertrude Kryger. About three years after the death of Emil Danne, Jay Danne died, leaving him surviving as his only heir at law and next of kin, his widow, Julia Danne (now Julia Danne Curren).

The question that arose in the probate and the circuit court, and that arises here, is whether the distribution as provided in the final account of the executors is correct; and in order to determine that, it is necessary to interpret the meaning of the will, in so far as it pertains to the following residuary clause:

“The balance of my estate I desire to be divided between my brother Emile Danne, of Birmingham, Alabama, and my sister Adele Danne Cooper, seven twentieths to my brother and thirteen twentieths (13/20ths) to my sister. Should my brother Emil Danne pass on his share reverts to my estate and instead I bequeath to his son Louis Emile Danne two thousand dollars, and his brother Reginald Danne the sum of one thousand dollars, the difference going to my sister Mrs. Cooper.”

The testator, Louis Danne, having died on May 21, 1918, and Emil Danne having died afterwards, on November 5, 1918, it is claimed by the appellants, Adele D. Cooper, Louis Emil Danne, and Reginald Danne, that, inasmuch as it is stated in the will, “I desire that my estate be kept ‘in tact’ for three years,” no interest vested in Emil Danne, even though he died after the testator; in other words, that no interest-in the estate vested until the expiration of the three-year period.

The will named one Luecker and Adele Danne Cooper (the testator’s sister) executors, without bonds. It gave first, to his sister Adele Danne Cooper, certain personal property, and then one piece of personal property to the executor Luecker. It then stated as follows:

“I desire that my estate be kept in tact for three years after my demise and that my sister occupy my residence for that length of time of until sold, and if sold before the expiration of the three years, that my executors hire an apartment and pay $40.00 per month therefor during the three years; that my estate is to be kept in tact and also pay her $50.00 per month for table expense and hire of Albert L. Dixon, my servant, provided she desires to continue his employment. Also to pay my taxes, coal, gas, electric and telephone bills and repairs, if any.”

It then made five specific bequests, the first being $250 for the upkeep of a cemetery lot; the second being $250 for the maintenance of a niece, and in mailing that bequest, it provided, “and in case of her demise, before the final execution of this Will, the same is to revert to my estate, but thereafter to her brother’s children, John W. Danne, of Fairhope, Ala., to share and share alike. Adele Danne is partially blind, and wish that1 you Send her to an asylum for the blind.” The third is to Alberta O. Cooper the sum of $250; the fourth to a servant, Albert L. Dixon, the sum of $200 “if in my employ at the time of my death;” and the fifth to his niece Nellie E. Cassidy, the sum of $2,000, “but if she should die before the final execution of this will, then her bequest reverts to my estate.” Then follow eleven bequests, chiefly in the nature of jewelry, to various persons; the last of which is “to Albert L. Dixon, my servant, if he is in my employ at the time of my death.”

Following that is the direction, “Should any of the foregoing beneficiaries of jewelry die before the final execution and distribution of my estate, I desire that my sister dispose of his share or gift as she sees fit.”

Then follows the residuary clause, as set forth above. There was attached to the will the following addendum:

“I omitted to say that if my residence is not sold at the time of the final distribution of my estate, that my executors put up the property' at public auction and sell it to best advantage on terms agreeable to them.”

The inventory showed real estate of the value of $7500, being the house occupied by Adele Danne Cooper; and personal property of the value of $21,530.55, making a total of $29,030.55.

The final account and report of the executors shows receipts of $39,607.33 and disbursements of $12,508.90, leaving a balance of $27,087.32. We agree with the probate and the circuit court that Emil Danne, under the residuary clause in the will, had a vested interest at the time of his death, and that the appellees, as the only heirs at law and next of kin of Emil Danne, are entitled to that interest.

In Scofield v. Olcott, 120 Ill. 362, the court said:

“Viewed in the light of the definitions, here quoted, the interest of William Abbey was a vested one. The testator deidsed and bequeathed all his real and personal property (except that embraced in the second and fourth clauses) to his executors and trustees ‘to have and to hold the same for the uses and purposes and upon the trusts,’ mentioned in clauses 3, 5, 6 and 7.”
“A will takes effect at the death of the testator. At the death of George T. Abbey the legal title to all his property vested in the trustees for the uses and purposes above set forth. It so vested at that time for all such purposes and for one as much as another. As soon as the testator died, the trustees at once took title to the residue, named in clause 7, and at once and thereafter held it in trust to be conveyed, assigned and delivered to William, when the proper time should come. It is true, that his enjoyment of it was to be postponed, until a future period; But their holding it in trust to be conveyed to him began immediately upon his father’s death. * * * At his father’s death there vested in him a present equitable right to have a conveyance from the trustees, when his mother’s life estate should determine, subject to the payment of the legacies of $15,000; he then had ‘a present fixed right,’ although only an equitable one, of future enjoyment. This right vested, not in a person thereafter to be born, but in a person, definite and ascertained, and then in being. * * * If futurity is annexed to the substance of the gift, the vesting is suspended; but if it appears to relate to the time of payment only, the legacy vests instanter. ’ ’

In Henderson v. Cadwalader, 202 Ill. App. 351, the court said:

■ “Whenever the person who is to succeed to the estate in remainder is in being and is ascertained, and the event, which by express limitation will terminate the precedent estate, is certain to happen, the remainder is vested.”

In Pearson v. Hanson, 230 Ill. 610, the court said:

“The law favors the vesting of estates, and in cases of doubt the construction will be adopted which leads to that result. An estate is vested when there is an immediate right of present enjoyment or a present fixed right of future enjoyment. It carries with it the seizin in law or in equity, according to the character of the estate, and takes effect in interest and right immediately on the death of the testator, although it may not take effect in possession and enjoyment until the death of a life tenant or the termination of another particular estate.”

It is urged that the fact that the trustee, or the executor, was to sell the real estate, the legacy did not vest until the real estate was sold, but as the court said in Armstrong v. Barber, 239 Ill. 389:

“While the rule is general that where there are no words importing a gift, other than to the executors or trustees to divide or pay at a future time, the legacy is contingent, still, if the payment is postponed for the convenience of the funds of the estate and not for the reasons personal to the legatees or devisee, it should be held vested.”

In the instant case, it may be said that the estate for the three-year period, was given, in part, to Adele Danne Cooper, and that Emil Danne was a remainder-man, and that as he ivas in being at the time of the death of the testator, and the event for the termination of the estate was certain to take place, as it was fixed in terms of years, it follows that the remainder became vested in Emil Danne on the death of the testator. Lynn v. Worthington, 266 Ill. 414; McComb v. Morford, 283 Ill. 584.

As so frequently happens, there may be some doubt as to the exact meaning of the testator as he expressed himself in his will. There are a number of expressions that seem to suggest an intention to postpone the vesting of rights until a future time, that is, to some point of time after his death. He says, for example, “I desire that my estate be kept in tact for three years after my demise.” He provides that his. sister may keep his residence for that length • of • time, or until sold, but if sold before the expiration of three years, that then his executors shall take care of her,, and that his executors shall provide an apartment for-her. The will also provides for a bequest of-$250.-for the maintenance of a blind niece, and it says, “In case of her demise before the final execution of this Will,the same is to revert to my estate, but thereafter to her brother’s children.” There is, also, a bequest of $2,000 to another niece,, with the provision, “but. if she should die before the final execution of" this will,' then her bequest reverts to my estate.” Also, each of the eleven bequests of jewelry is subject to the following : “Should any of the foregoing beneficiaries of jewelry die before the final, execution and distribution of my estate, I desire that my sister dispose of his share or gift as she sees fit.” However, in the so-called residuary clause, which is here chiefly to be considered, the testator merely says, after giving the balance of his estate to be divided between his brother and his sister, “Should my brother, Emil Danne pass on, his share reverts to my estate, and instead I bequeath to his son,” etc. Of course, his brother might die any time before the document becomes a will by the testator’s death, or he might die the day after, or three years or more from the date thereof. The words, “Should my brother Emil Danne pass on,” are not expressly connected with any event, save the death of the testator and the coming into being of the will itself as an effective document. When the testator wrote the words, “Should my brother Emil Danne pass on,” necessarily he had reference to a future event, but which event, we think, was to transpire before his own death.

The will is inartistically drawn, and does contain, as set forth above, some expressions on the matter here in question, which are confusing. However, we feel quite convinced that the interpretation of the will, made by the probate and the circuit court, was justified. The cases cited by counsel for the defendant, do not, in our judgment, justify any other construction.

In Johnson v. Askey, 190 Ill. 58, the court said:

“While the law favors the vesting of remainders, and will fix the time at which they vest at the time of the death of the testator rather than at the period of distribution, where it clearly appears, from the entire will, that it was not the intention of the testator that the remainder should vest at the time of his death but at the period of distribution, such intention will be carried out by the courts. ’ ’

Here, as we have intimated above, we are constrained to the conclusion' that it does not clearly appear, upon consideration of the entire will, that it was not the intention of the testator that the remainder should vest at the time of his death. In two instances in the will, the expression is “before the final execution of this will,” and in the other, “before the final execution and distribution of my estate,” but in the one here in question, the words are simply “should my brother Emil Danne pass on.” In the latter instance, the point of time seems quite certain to be that of the beneficiary’s death before that of the testator; in the other two instances, the point of time is before the execution of the will, whatever that may mean. Obviously, therefore, we think the only fair interpretation of the whole will is that the bequest to Emil Danne vested immediately upon the death of the testator.

For the foregoing reasons, the judgment is affirmed.

Affirmed.

Holdom and Wilson, JJ., concur.


author: Mr. Justice Holdom

text:
    Chauncey T. Smith, Plaintiff in Error, v. Jack Zuta et al., Defendants in Error.
    Gen. No. 31,625.
    1. Process — sufficiency of evidence to overcome return. The return of a bailiff, made in discharge of his duty, showing service of process upon a person cannot be overcome by the uncorroborated and unsupported statement of the person that he had not been served.
    2. Judgments and decrees — payment of attorney’s fee as condition to vacation of judgment. In ordering the defendant to pay an attorney’s fee as a condition to vacating a judgment it is erroneous to direct that the fee be paid to plaintiff’s attorney instead, of to plaintiff.

      3. Appeal and error- — accepting benefit from order as wafaer of right of review. The acceptance of an attorney’s fee, ordered to be paid by the defendant as a condition to the vacating of a judgment, does not debar plaintiff from a review of the erroneous action of the court, where, by the terms of the order, the fee was taken by plaintiff’s attorney, and not by the plaintiff, and was so ordered taken without prejudice to the right of the plaintiff to appeal.
    Error by plaintiff to the Municipal Court of Chicago; the’ Hon. Bobert E. G-entzel, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1927.
    Beversed and remanded with directions.
    Opinion filed January 18, 1928.
    Bell & Cross, for plaintiff in error; Stephen A. Cross and William B. Greene, of counsel.
    Harry W. Starr, Israel R. Goldberg and Charles P. R. McCauley, for defendant in error, Jack Zuta.
   Mr. Justice Holdom

delivered the opinion of the court.

This action was brought by plaintiff against Jack Zuta, Henry Finkelstein and Morris Simmons for damages arising out of an automobile accident on September 28, 1923, and the plaintiff claimed damages in the sum of $485. The suit was dismissed as to the defendants Finkelstein and Simmons, which left Jack Zuta as the sole defendant. Zuta was personally served with a summons, as shown by the return thereon of the bailiff of the municipal court, on December 11, 1923. Zuta’s appearance was entered in the cause by one Murphy O. Tate, as his attorney. It is not challenged but that Tate was at the time he entered Zuta,’s appearance a regularly' licensed attorney of the State of Illinois. Tate, as Zuta’s attorney, made an affidavit that Zuta had a meritorious defense to the action. On November 14, 1924, there was a trial before the court without a jury and a finding against Zuta in tort for $385.50 and costs, and a judgment on that finding for the lasthnentioned sum.

Thereafter and on April 19, 1926, defendant obtained leave to file a petition to vacate the judgment, whereupon plaintiff moved to strike such petition from the files. On May 7, 1926, the motion of plaintiff to strike Zuta’s petition to vacate the judgment was denied, and the cause was reinstated on condition that an attorney’s fee of $25 should be paid by Zuta, and it was paid.

In Zuta’s petition to vacate the judgment against him he claimed inter alia, that he had not been served with a summons, and that he had not employed or authorized Tate to appear for him as his attorney to defend the suit, and not until August, 1925, did he know that judgment had been taken against him in the suit.

An order was entered on July 27, 1926, granting Zuta’s petition and vacating the judgment order of November 14, 1924, and reinstating the cause for trial on payment to plaintiff’s attorney of $25, and also giving leave to Tate to withdraw his appearance as attorney for Zuta. On August 30, 1926, an order was entered of record that Zuta be allowed to pay the $25 attorney’s fees in open court to plaintiff’s attorney, and that said sum be accepted by said attorney without prejudice to plaintiff’s appeal. Tate told the court that he was not retained by Zuta, but representing the insurance company who had insured the risk, assumed so to do as a matter of course, contending that it was a custom among attorneys in Chicago representing insurance companies in suits to appear, as a matter of course, for all the defendants joined with the insurance companies without any direct authority so to do.

Error is assigned on the court’s refusal to strike Zuta’s petition to vacate the judgment from the files, and in vacating such judgment, and in permitting Zuta to defend against the action.

On November 14, 1924, the judgment was entered and not until one year and six months thereafter, on May 7, 1926, did Zuta file his motion to vacate the judgment. If it were necessary to apply the doctrine of laches to. these facts, we should hold that laches was apparent.

When the judgment was rendered it is clear that the court had jurisdiction of Zuta in two ways, first, by the service of process upon him by the bailiff of the court, and by Tate’s entry of his appearance. There is nothing in this record to support the claims of Zuta that he was not served with process, except his own statement. The service of process cannot be nullified in any such way. If it could, there would be no security in court judgments. In the case at bar there is no supporting fact to cast doubt upon the return of service by the court’s officer. The fact of service cannot be overcome by the unsupported statement of the party served. - The return of an officer made in discharge of his duty will not be disregarded, except upon clear and satisfactory evidence, and will not be set aside on the uncorroborated and unsupported statement of the person on whom the officer’s return of service shows that it was made.

In Marnik v. Cusack, 317 Ill. 362, the court said:

“The well established rule is that the return showing service cannot be overcome by the uncorroborated testimony of the defendant,” and then indulged in the following observations:
“The stability of judicial'proceedings, however, requires that the return of an officer made in the due course of his official duty and under the sanction of his official oath should not be set aside merely upon the uncorroborated testimony of the person on whom the process has been served but only upon clear and satisfactory evidence. Davis v. Dresback, 81 Ill. 393; Kochman v. O’Neill, 202 id. 110.”

Defendant’s counsel contend that the acceptance of the $25 attorney’s fee ordered paid by the court debars plaintiff from availing of the erroneous action of the court, even were such action erroneous. The fee was awarded as a condition precedent to the action of the court in vacating the judgment. It was ordered by the court to be paid to plaintiff’s attorney. This in itself was erroneous; the lawyer was not a litigant, it was the client who was responsible for the payment of fees to his attorney. Moreover, by the express terms of the order, it was taken by the attorney, not the plaintiff, and was so ordered taken without prejudice to the right of the plaintiff to appeal. There is no force in this contention of defendant. Furthermore this point was passed upon adversely to defendant by this court when he raised the question by plea which th'e court struck from the files. This action of the court eliminated that question from the case and this court’s further consideration of it.

For the foregoing reasons the judgment of the municipal court appealed from is reversed, and the cause is remanded to the municipal court with directions to restore to the record the judgment entered November 14, 1924, against Jack Zuta for $385.50 and costs.

Reversed and remanded with directions.

Taylor, P. J., and Wilson, J., concur.


text:
    Home Bank & Trust Company, Appellant, v. Mary Szostowski et al., Appellees.
    Gen. No. 31,893.
    1. Trial — suspension of trial to await arrival of witnesses. In the orderly conduct of the business of a court it is not the province nor the duty of the judge to suspend operations to await for a short time the arrival of absent witnesses who have testified in the case when they could have been examined upon all proper matters if interrogated by counsel.

      2. Harmless and prejudicial error — failure to join issue. A judgment may not be reversed for an irregularity in proceeding to trial without joinder of issue.
    3. Harmless and prejudicial error — refusal of instructions on theory of case. In an action by a bank upon a contract of guaranty it is reversible error to deny it the right to have the jury instructed upon its theory of the case which the evidence tended to prove.
    4. Instructions — misleading marks on instruction. The submission to a jury of original and carbon copies of an instruction which directs a verdict of not guilty for a named defendant if the jury believes certain facts, and which original copy is marked with a circle around the name of the defendant with a cheek mark underneath and the word “no” in the middle of the page, is prejudicial to plaintiff as misleading.
    5. Guaranty — applicability of instruction to pleadings. Where, in an action by a bank on a contract to guarantee its loan, the issue raised by the pleadings is whether the bank agreed to and did extend the time of payment or forbore suit, and whether the guaranty was executed in consideration of such extension or forbearance, an instruction to find for the defendants if the guaranty was given to secure a loan is improper as being inapplicable to the pleadings, there being no averment in the pleadings that the bank would make a new loan.
    6. Guaranty — instruction singling out evidence. Where, in an action by a bank on a contract to guarantee its loan, the issue raised by the pleadings is whether the bank agreed to and did extend the time or payment or forbore suit, and whether the guaranty was executed in consideration of such extension or forbearance, an instruction to find for the defendants if the guaranty was given to secure a loan is improper in singling out evidence and giving undue prominence to evidence which is not in issue.
    7. Instructions — necessity of embracing all facts. An instruction which in effect directs a verdict if the jury believe certain facts should embrace all the facts and conditions essential to such a verdict.
    8. Guaranty — indefinite instruction as to consideration. An instruction in an action on a contract of guaranty to find for the defendant if the jury believes that the defendant received no consideration for sign-, ing the contract is too indefinite as to the meaning or import of the words “no consideration. ”
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding.
    Heard in the third division of this court for the first district at the March term, 1927.
    Reversed and remanded.
    Opinion filed January 18, 1928.
    Cheney & Peterson, for appellant; Albert Peterson, of counsel.

      Novak & Novak, for Mary Szostkowski, appellee; Frank H. Novak, of counsel.
    Fred L. Steers, for Anna Nowak, appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This suit was dismissed as to all of the defendants except Frank Waszkiewicz, Mary Szostkowski and John Szostkowski, who were defaulted for want of a plea. Anna Nowak joined issues by appropriate pleading, and the cause as to them was tried before the court and jury, in whose favor the jury rendered a verdict upon which there was a judgment of nil capiat, after the overruling by the court of motions for a new trial and in arrest of judgment, from which judgment plaintiff bank prosecutes this appeal asking a reversal.

The action is assumpsit declaring upon a contract of guaranty executed and delivered by the defendants to the plaintiff bank. The guaranty requested the plaintiff bank to extend credit to enable the Garfield Machine and Manufacturing Company (name changed to Universal Projector and Machine Company) from time to time, and jointly and severally guaranteeing payment of all its indebtedness, liabilities and obligations to said plaintiff bank to the amount of $15,000 with interest, etc.

The declaration avers an indebtedness by the Garfield Machine and Manufacturing Company, also known as Universal Projector and Machine Company, to the plaintiff bank in the sum of $10,000, which indebtedness was evidenced by its note, which is due and unpaid, together with interest, costs, expenses and attorneys’ fees incurred in endeavoring to collect said indebtedness; and that the guaranty was executed by the defendants for a good and valuable consideration, to wit, the extension of the time of payment of the indebtedness of the. corporation for a reasonable time, which was given to' the corporation by the plaintiff bank, and that notwithstanding such extension of payment no part of the indebtedness has been paid.

Defendant Anna5 Nowak pleaded the general issue' and a special plea averring that the contract set forth in the declaration was executed and entered into without any good and valuable consideration; that nothing of value was received by Anna Nowak; that the plaintiff did not agree with her to forbear bringing suit against the corporation, as alleged; that plaintiff did not agree with defendant Anna Nowak to extend the time of payment of said indebtedness of said corporation ; that the corporation did not obtain any credit or make and receive any loans or moneys on the 10th of May, 1924, or at any time thereafter.

Anna Nowak’s third plea is nil debet, and her affidavit of merits supporting the pleas stated the defense to be that the contract of guaranty was made and signed by her after the execution of the note set forth in the declaration; that no credit, loan or thing of value was extended or given to the corporation by the plaintiff bank, and that it did not promise her that it would extend payment of the indebtedness of the corporation; that plaintiff bank did not promise her that it would forbear the bringing of suit against the corporation; that she did not sign said agreement for a good and valuable consideration, to wit, the extension of the time of payment of the aforesaid $10,000 indebtedness and the forbearance of suit thereon, and that she did not guarantee the payment of the indebtedness.

On December 20, 1924, the following order was entered:

“It is ordered that the defendant, Mary Szostkowski be and hereby is defaulted for want of a plea and affidavit of merits. Motion of defendant Szostkowski for leave to file an amended plea instanter denied, to which ruling of the court the defendant excepted. Thirty days time given for bill of exceptions.”

No bill of exceptions on this order is found in the record.

The cause proceeded to trial on the issues made by the declaration of plaintiff and the pleas of defendant Anna Nowak and replications thereto. Plea of Mary Szostkowski craving oyer makes no issue, except to serve the purpose of compelling the plaintiff to exhibit in court the document upon which the cause of action is based, so that the defendant craving oyer may see and inspect the document. The purpose of this plea was subserved when the plaintiff bank produced in court the contract of guaranty, counted upon in the declaration, upon the trial.

Counsel for plaintiff bank call the court’s attention and urge upon us the consideration of the fact that they offered for their client the testimony of Mr. John J. Krause, vice president of the bank, Mr. Lawrence H. Prybylski, another vice president of the bank, and Mr. Peter L. Evans, its president, for the purpose of specifically denying conversations testified to by defendant Nowak, and that the court refused to wait a few minutes for such witnesses to get to the court room and so testify. It is in evidence that these witnesses had all testified in the case when they could have been examined upon all matters within their knowledge pertaining to the case if interrogated by counsel. If plaintiff’s counsel wished further.to interrogate these witnesses it was his duty to have them in court at the proper time. We can take no notice of any fact which counsel might seek to prove by such witnesses, if the court had awaited their. arrival, and in the orderly conduct of the business of the court it is not the province or duty of the presiding judge to suspend operations to aAvait the arrival of absent witnesses. Counsel notes the fact, as he claims, that twelve minutes after the statement was made to the court regarding absent witnesses Mr. Prybylski entered the courtroom. The course of justice cannot be obstructed or suspended at the whim or caprice of absent witnesses.

• While we do not intend to detail the evidence given upon the trial, as in the view we take of the case by reason of giving erroneous instructions, the judgment must be reversed and the cause proceed to a new trial. However, for the information of counsel, we would here say, that the cause was tried irregularly, and that no issue was joined except by the defendant Anna Nowak. All of the other defendants, appellees here, except Anna Nowak, were defaulted, some for want of appearance and others for the lack of pleas. However, if the judgment was otherwise regular, we would not reverse the cause for that irregularity, but it would be well for counsel to correct such irregularity by having the issues appropriately joined on the next trial.

The evidence of plaintiff and defendants is in sharp conflict, and in such condition of the proofs it behooves the court to be correct in its instructions to the jury. The plaintiff bank had a right to have the jury instructed upon their theory of the case which the evidence proffered by them tended to prove, and to deny it such' right was reversible error.

The plea of defendant Mary Szostkowski was defective. In order to put in issue her execution of the guaranty it was necessary that she should file a plea of the general issue and an affidavit of meritorious defense denying the execution of the guaranty. In the remanding of the cause she may, if she sees fit apply to the trial court, and procure leave to file such pleas as well as an affidavit of meritorious defense.

The issues consisted in the averment by the plaintiff bank of an agreement to extend the $10,000 note, and that it forbore suit in consideration of the execution and delivery to it of the contract of guaranty set forth in the declaration.

To this declaration defendant Anna Nowak interposed certain pleas hereinabove set forth.

The first, instruction said to be erroneous is as follows:

“The court instructs the jury as a matter of law that if you believe by a preponderance of the evidence that at the time the defendant, Mary Szostkowski, signed the agreement or instrument sued on in this cause, it was agreed that one Bernice Gessey was also to sign the said instrument sued, on, and that said instrument was not to be used or to be an obligation as to the said defendant, Mary Szostkowski, unless the said Bernice Gessey also signed the same, and if you further so believe that said instrument was not signed by Bernice Gessey, then your verdict should be not guilty as to the defendant, Mary Szostkowski. ’ ’

This instruction, which directed a verdict of not guilty as to the defendant, Mary Szostkowski, was given twice, the carbon as well as the original copy being read to the jury by the trial judge. The original typewritten instruction was marked with a circle around the name of Mary Szostkowski, and a check mark underneath, and in the middle of the page was the word “no.” It is supposed by counsel for the defense that that was a mark of a juryman, but there is no evidence in the record on this point. It was highly prejudicial to the plaintiff bank to give the instruction in duplicate with the marks upon it, as above indicated. It was calculated to mislead the jury to the prejudice of the plaintiff bank.

The court also gave the following instruction, which was objected to:

“You are further instructed that if you believe from the evidence that the contract of guaranty signed by the defendant was given for the purpose of securing a loan of $15,000, then you are instructed to find the issues for the defendants.”

That instruction was inapplicable to the pleadings. There is no averment in the pleadings that the bank would make a new loan of $15,000 to the corporation. The point in dispute raised by the pleadings was whether the bank agreed to and did extend the payment of the $15,000 loan or forbore suit upon that indebtedness; and secondarily, whether the guaranty was executed and delivered to the plaintiff bank in consideration of such extension or forbearance. Again it is bad because it singles out evidence, and gives undue prominence to evidence which is not in issue. As said in Drda v. Drda, 298 Ill. 278:

“That note, with other facts, would raise an inference of the ultimate fact in issue; and furthermore, it is not proper to direct attention to a single item of evidence which in itself, alone, would not be conclusive. That might be done in any case as to every single item of evidence not conclusive in itself, with the effect to destroy the aggregate effect of all the evidence.”

Furthermore an instruction which in its effect directs a verdict should embrace all the facts and conditions essential to such a verdict. Chicago Consol. Traction Co. v. Schritter, 222 Ill. 364.

The giving of the following instruction is likewise assigned for error:

“You are further instructed that if you believe from the evidence that the defendant, Anna Nowak, signed the guaranty admitted in evidence in this case, for the purpose of procuring a loan of $15,000 from the Home Bank & Trust Company to the G-arfield Machine & Manufacturing Company, then you are instructed to find the issues for the defendants.”

This is erroneous for reasons already assigned. And finally the giving of the following instruction is assigned for error:

“You are further instructed that if you believe from the evidence that the defendant, Anna Nowak, received no consideration for signing the guaranty admitted in evidence in this case, then you are instructed to find the issues for the defendant, Anna Nowak.”

It was altogether too indefinite as to the meaning or import of the words “no consideration.” The jury might naturally conclude the court intended to inform them that the guaranty signed by Anna Nowak was not effective in law unless she had received some financial benefit for so doing, the matter of the kind of benefit being left to the jury to conjecture.

For the reasons above assigned the judgment of the superior court is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

Taylor, P. J., and Wilson, J., concur.


text:
    The People of the State of Illinois ex rel. Robert E. Barbee, Defendant in Error, v. Edmund K. Jarecki et al., Defendants. James G. Coyle, Plaintiff in Error.
    Gen. No. 31,947.
    1. Mandamus — necessary party in proceeding to compel the holding of an election. The candidate who received the greater number of votes at an aldermanie election should be made a party to a mandamus proceeding by the candidate having the lesser number of votes to require election officials to hold a supplemental election.
    2. Mandamus — intervention by candidate in proceeding by opposing candidate. The candidate who received the greater number of votes at an aldermanie election should be granted leave to intervene in a mandamus proceeding by the candidate having the, lesser number of votes to require election officials to hold a supplemental election.

      3. Mandamus — right of person not joined as party to file demurrers. In mandamus by a candidate who received the lesser number of votes at an aldermanie election to require election officials to hold a supplemental election, the candidate who received the greater number of votes, but who was not made a party and whose petition to intervene has been denied, should be granted leave to file a general and special demurrer.
    4. Appeal and error — right to appeal from denial of motions to intervene and demur in mandamus. Leave should be granted to a candidate who received the greater number of votes at.an aldermanie election to appeal from denial of motions for leave to intervene" and to file a general and special demurrer in mandamus by the candidate having the lesser number of votes to require election officials to hold a supplemental election.
    5. Mandamus — not awarded to require holding of futile election. A writ of mandamus will not be awarded to require eleetion officials to hold a supplementary aldermanie election when the legal time for such election has long since passed.
    Error by defendant to the Superior Court of Cook county; the Hon. Worth E. Caylor, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1927.
    Reversed and judgment here dismissing relator’s petition.
    Opinion filed January 18, 1928.
    Charles A. Williams and Harry S. Ditchburne, for plaintiff in error.
    Earl C. Hales and John J. Sonsteby, for defendant in error.
   Mr. Justice Holdom

delivered the opinion of the court.

This is a writ of error sued out by the plaintiff in error, James G-. Coyle, who was elected alderman of' the seventeenth ward in Chicago, which office the relator Barbee claimed. Coyle sought to be made a party to the relator’s petition for mandamus, but his motion for that purpose was denied by the trial court. It is self evident that Coyle was an interested party and should have been in the first instance made a party to the proceeding.

This proceeding is analogous to the case of People ex rel. Eaton v. Jarecki, post, p. 628, the opinion of the court by Mr. Justice Wilson being handed down at the same time as this opinion. In this case on this point the court adheres to its ruling in the Eaton case, supra.

The petition of Coyle for leave to intervene, and the denial thereof by the court, and the exception of Coyle to the court’s ruling, appear in the record. Coyle then presented a special and general demurrer to the petition of relator and asked for leave to file the same, which the court likewise refused, and to which action of the court he likewise excepted. He then prayed an appeal to this court from the foregoing denials of his motions, which the court also refused, which culminated in Coyle’s suing out this writ of error. All of the foregoing appears from the record before us. The action of the court in all these matters was erroneous.

The bill of exceptions in the record was signed and sealed by the trial judge on the motion of Coyle, which is the only time any motion made on his behalf was heeded by the court.

Coyle in his petition set out, inter alia, that he possessed the necessary qualifications for alderman of the seventeenth ward, and that he was a candidate for said office at an election held under the so-called Nonpartisan Election Act on February 22, 1927, Cahill’s St. ch. 24, ¶ 301 et seq., at which he and Barbee were the only candidates whose names were on the ballot for such alderman; that Coyle received 6854 votes and Barbee 6706 votes, and that he, Coyle, was elected; that the abstract or statement of the canvassing board was filed in the county court of Cook county on March 4, 1927, and that he was declared elected according to law; that he has an interest in the office of aider-man of the seventeenth ward, and the right to exercise its functions and to receive the emoluments thereof, and that his term is to begin on or about April 16, 1927, etc.

The Nonpartisan Election Act, Cahill’s St. ch. 24, ¶ 303, provides that in the event a candidate for aider-man in any ward fails to obtain a majority of the number of votes cast for that office, there shall be a so-called supplementary election, which is to be held on the first Tuesday of the following April, which in 1927 was April 5.

In relator’s petition for mandamus it apears that 337 ballots were either spoiled, defective or not cast for either candidate, and were not included in the totals credited to either candidate, and relator says that these ballots should have been counted for the purpose of determining which of the candidates had a majority of the votes cast.

As said by Mr. Justice Wilson in the Eaton case, supra:

“In the view this court takes of this action, it becomes unnecessary to discuss the rights of the trial court to direct by mandamus a retabulation of the returns of the canvassing board or to consider the question as to whether or not the 457 votes, referred to as cast, should be considered * * *; nor is it necessary for this court to consider that the proper tribunal to pass upon this election would be the City Council. It appears from the facts in evidence that the prayer of the petition is that the canvassing board be compelled to call a special election, pursuant to the statute, on April 5,1927, for the purpose of affording relator an opportunity to again run at a supplementary aldermanic election to be held on that date by virtue of the provisions of the statute that requires such an election where no candidate has received a majority of the total votes cast.”

The time for such an election has long since passed. Nothing could be obtained by the issuance of a writ of mandamus.

In the case of People ex rel. Molchan v. City Council of City of Streator, 258 Ill. 273, the court said:

“The rule has long been recognized in this court that the writ of mandamus will not be issued in any case where it will prove unavailing, fruitless or nugatory; that the court will not compel the doing of a vain and useless thing.”

And this court said in People ex rel. Willey v. Buck, 181 Ill. App. 110:

“If this court should affirm this order and judgment of the circuit court, it is not in the power of the court to enforce the judgment, that is, to compel the respondents to hold an election on the third Tuesday of July, 1912.
“It is the settled rule of law, as applied in cases of mandamus, that courts will not award this peremptory writ where the right sought to be enforced has become a mere abstract right, the enforcement of which the court can see would be impossible, since no substantial or practical benefit could result to the petitioner.
“In the case of the People v. Kay, 154 Ill. App. 233, in discussing this subject, the court said: ‘The prayer of the petitioner only relates to the election to be held on April 20, 1909. That period has passed. No mandamus can now issue to call that election in any particular manner. It is well settled that a peremptory writ of mandamus will not be awarded when the right sought to be enforced is an abstract right, the enforcement of which by some change of circumstances since the commencement of the suit can be of no substantial or practical benefit to the petitioners. ’ ”

In consonance with the foregoing reasons the judgment of the superior court is reversed and a judgment dismissing the petition entered here.

Judgment reversed and judgment here dismissing relator’s petition.

Taylor, P. J., and Wilson, J. concur.


author: Mr. Justice Wilson

text:
    The People of the State of Illinois ex rel. Robert E. Jeske, Defendant in Error, v. William Burke, Plaintiff in Error.
    Gen. No. 31,626.
    1. Appeal and error — presumption that evidence warrants findings in order. Oil review of an order of commitment for contempt of court which recites that evidence was heard at the hearing of the cause, it will be presumed that the evidence was sufficient to warrant the findings contained in the order.
    2. Contempt — acts of judge of election. The acts of misconduct of a judge of election at the polls when taken collectively, together with the manner in which they were done, as found by an order of commitment for contempt, were sufficient to constitute a contempt of court, although the individual acts, in and of themselves, might not constitute a contempt.
    3. Saving questions eor review — contempt proceedings against election officers jointly. Any error of a court in proceeding against election officers jointly for contempt may not be considered where it appears that no objection was made to the proceeding at the time, that there was no motion for severance and that the proceeding may have been with the consent of the officer objecting on review.
    4. Contempt — nature of election as subjecting judge of election to liability. A special proposition on the question of the adoption of an ordinance for a comprehensive local transportation system need not be submitted to the voters at a general or special election in and for the entire city, and, therefore, submission of such question to the voters on a supplementary aldermanic election, as provided by Cahill’s St. ch. 24, 302, was proper so that a judge of election was under the jurisdiction of the county court and liable for contempt for misconduct at the polls.
    Error by defendant to the County Court of Cook county; the Hon. Edmund K. Jarecki, Judge, presiding.
    Heard in the third division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed January 18, 1928.
    Rehearing denied January 30, 1928.
    John F. Tyrrell and John F. Higgins, for plaintiff in error; Louis Greenberg, of counsel.

      Robert E. Crowe, State’s Attorney, for defendant in error; Henry T. Chace, Jr., Edward E. Wilson and Lee La Rochelle, Assistant State’s Attorneys, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

This matter comes to us on a record containing the pleadings and an order of the county court finding the plaintiff in error, defendant below, William Burke, guilty of contempt of court and ordering him committed to the custody of the sheriff. There is no bill of exceptions although it apears from the commitment order that evidence was heard at the hearing of the cause, and the order of the court appears to be based upon that testimony.

It follows, necessarily, that while an order of court adjudging a defendant guilty should be carefully scanned for the purpose of finding that the court had jurisdiction, and that there were allegations in the order, sufficiently clear upon which to predicate a finding of guilty; nevertheless, it is also true that this court will presume that the evidence heard was sufficient to warrant the findings contained in the order of commitment.

From the order it appears that the defendant below, together with certain other persons named in the order, were acting as judges and clerks of elections in the city of Chicago on an election held April 7,1925, which election was known as a “Special Proposition Election” ; that at this election a proposition was submitted which consisted of an ordinance submitted to the voters of the city of Chicago, providing for a comprehensive municipal local transportation system. The defendants in the commitment proceeding were acting as election officials in the sixteenth precinct of the forty-second ward in the city of Chicago, and the order finds that as such officials, at said election, they did wrongfully receive votes twice in the names of registered voters in said precinct; and did wilfully keep a false poll list and did knowingly insert in said poll list false statements and names of persons who did not appear in the polling place of said precinct; and did, without urgent necessity, absent themselves from the polls, and by reason of the acts aforesaid, were guilty of misconduct and misbehavior as officers of the county court of Cook county, Illinois.

It is contended on behalf of the plaintiff in error that judges and clerks of election are authorized at any time during the election to absent themselves from the polls, and that, therefore, the order in this regard, finding that they did absent themselves, does not indicate anything done by them contrary to law; that the clerks of election are the keepers of the poll books and that the defendant below was a judge of election and therefore should not be responsible for things done by the clerks, in regard to keeping a false poll list and inserting false statements and names on the books; and that that part of the order finding that they had received votes twice in the name of the same registered voter is not an offense unless the votes were deposited in the ballot box, and that, therefore, the order in this regard was void and ineffective.

In regard to the contentions of the defendant below, William Burke, as hereinabove stated, the fact is evidently overlooked that this is a contempt proceeding and that he is not charged with any particular offense, but that his conduct while acting as a judge of election was such that in the opinion of the county court it was contumacious and in disrespect of that court and consequently a contempt thereof. Moreover, the order states not only that these .things were done but that they were done “wrongfully and wilfully” and charges that the poll lists were false, and that the defendants, which would necessarily include William Burke, inserted false names in said poll lists. The order furtlier finds that Burke, together with the other defendants, absented himself wilfully from the polling place at times when there were not sufficient officials remaining in said polling places to transact the business. In other words, the individual acts complained of, in and of themselves, might not constitute a contempt, but the acts taken collectively, together with the manner in which they were done, as found by the order, were sufficient to constitute a contempt. It is insisted that it was error for the county court to proceed against the defendants jointly, but there appears to have been no objection to the proceeding made at the time, nor does there appear in the record any motion for severance, and so far as this court knows, in the absence of a bill of exceptions, it may have been by and with the consent of defendant below, William Burke, and the court is therefore not impressed with that argument. The particular ground relied upon for reversal appears to be that the special proposition should have been submitted to the voters at a general or special election, in and for the entire city, and that, as a matter of fact, it was submitted at an election held on April 7, 1925, which was a supplementary election for the purpose of electing aldermen who had not received the required number of votes to qualify them as aider-men at the previous aldermanic election held in the city of Chicago.

Cahill’s St. ch. 24, ¶ 302, p. 354, provides as follows:

“General elections for aldermen shall be held in the year or years fixed by law for holding the same, on the last Tuesday of February of such year. Any supplementary election for aldermen held under the provisions of this act shall be held on the first Tuesday of April next following the holding of such general aldermanic election. * * *”

We believe that this question is settled by the case of People ex rel. Broomell v. Hoffman, 322 Ill. 174. In that case the court had before it the identical order of the county court which is now before ns, and the plaintiff in error, Burke, was a respondent in the proceeding in the Supreme Court. From the statement of facts in that case it appears that an original petition for a writ of mandamus was filed in that court, alleging that the county court of Cook county, by an order entered September 15,1925, found that a special proposition election was held in Chicago, on April 7, 1925, on the question of the adoption of an ordinance providing for a comprehensive municipal local transportation system; that Burke, plaintiff in error here, and the others named, served as judges and clerks of election; and the court then proceeds to set out the order fully and at considerable length. The petition for mandamus was directed against the sheriff of Cook county, commanding him to take into custody the plaintiff in error Burke, and charging that the sheriff had refused to execute the county court’s order, finding him guilty and committing him to the custody of the sheriff. The respondent Burke joined in that proceeding in the Supreme Court in that cause, and specifically denied misconduct and misbehavior as charged in the order of commitment; averred that a judge of the county court had no power or authority to enter the rule because the City Election Act, Cahill’s St. ch. 46, 1T 240 et seq., was unconstitutional, and denied that the county court had jurisdiction; and charged that by reason of the filing of their answer under oath, they were entitled to be discharged; and asked that the petition for leave to file the writ of mandamus be denied. The court in its opinion, after holding against the plaintiff in error, Burke, respondent in that proceeding, as to all contentions made by said respondent, held that the county court had jurisdiction; that the proposition submitted to the voters was authorized by law, and that the election officials who conducted the election at that time and place were officers of the county court. In its opinion at pages 181-182 the Supreme Court says:

“The City Election act had been adopted by the city of Chicago and applied to the election under consideration, and the city council could not by the ordinance abrogate or supersede that act. No authority is vested in the council of any city under the City Election act to provide for the conduct of an election independently of that act, and it is to be presumed that the city council, as a public body discharging its duty, in submitting the ordinance for a local transportation system, merely sought to invoke, and not to contravene, the provisions of the City Election act. Moreover, by the adoption of the judges and clerks who conducted the aldermanie election on February 24, 1925, as the judges and clerks for the election of April 7, 1925, the city council did not make them its appointees. They had been appointed in accordance with and were acting under the provisions of the City Election act. Judges and clerks appointed under that act do not necessarily serve for a single election. Their term of office as fixed by section 10 of article 2 is one year, (Cahill’s Sts. 1925, p. 1098,) and the county court by its contempt order expressly found that the judges and clerks who conducted the election of April 7, 1925, were officers of that court.” The Supreme Court, after a full consideration of all the contentions made, entered an order awarding the writ.

In view of the decision of the Supreme Court in this case and for the reasons hereinbefore stated in this opinion, we are of the opinion that the order of the county court should be, and it is hereby affirmed, and the plaintiff in error, William Burke, defendant below, is hereby ordered remanded to the custody of the sheriff of Cook county.

Judgment affirmed and plaintiff in error remanded to the custody of the sheriff of Cook county.

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