author: Me. Presiding Justice Burke

text:
    People of the State of Illinois ex rel. Frank Abraham et al., Appellants, v. James P. Allman et al., Appellees.
    Gen. No. 40,457.

      Opinion filed February 27, 1939.
    Rehearing denied March 24, 1939.
    John S. Flannery, of Chicago, for appellants.
    Barnet Hodes, Corporation Counsel, for appellees; Fred Y. Maguire, Carl H. Lundquist, Alexander J. Besa and L. Louis Karton, Assistant Corporation Counsel, of counsel.
   Me. Presiding Justice Burke

delivered the opinion of the court.

On April 14, 1938, plaintiffs, who are 115 patrolmen in the classified service of the department of police of the city of Chicago, filed their complaint in the superior court of Cook county praying that they be granted a writ of mandamus commanding defendants to appoint each of them to the rank of sergeant in the police department of the city. On May 9,1938, defendants filed a motion to strike the writ of mandamus and to dismiss the suit. The motion set up as a ground for defense that the action was barred under the doctrine of res judicata by virtue of the proceedings culminating in the opinion filed in the case of People ex rel. Richards v. Allman, 289 Ill. App. 586. The motion also set up other defenses, including laches." On June 8, 1938, defendants, without having withdrawn the previous motion, filed a motion to dismiss. The second motion urged that the action be dismissed for the reason that it was barred by a prior judgment involving the same cause of action, the same parties, and the same relief as covered by the opinion filed on April 5, 1937, in the case of People ex rel. Richards v. Allman, supra, reported in 289 Ill. App. 586. To the motion was attached a copy of the opinion of this court and of the petition for leave to appeal filed in the Supreme Court and the answer thereto. Accompanying the written motion was an affidavit by Carl Hjalmar Lundquist, an assistant corporation counsel of the city of Chicago and one of the attorneys for the defendants herein, in which he states “that he has examined all the pleadings in the cases referred to in the attached motion; that he has read the above and foregoing motion by him subscribed; that he knows the contents thereof and that the averments contained therein are true in substance and in fact to the best of his knowledge and belief, and that 'in his opinion said motion to dismiss is well founded in law, and he avers that said motion to dismiss is not interposed for delay.” On June 14, 1938, John S. Flannery, in behalf of plaintiffs, filed an affidavit in opposition to the motion of defendants. After hearing arguments, the court, on June 17,1938, entered an order sustaining defendants’ plea of res judicata and dismissed the cause. The court did not rule on defendants’ first motion to strike. Plaintiffs maintain that the filing of the subsequent motion (on June 8, 1938) amounted to an abatement of the previous motion. Defendants reply to that argument by saying that the two motions were set for hearing on the same day and that although the court entered its judgment based on the res judicata point (the only point urged in the second motion), defendants have not waived the defense of laches raised in the first motion. The petition to the Supreme Court for leave to appeal was denied and therefore the opinion reported in 289 Ill. App. 586 stands as final. Plaintiffs prosecute this appeal from the judgment of the court dismissing their petition for a writ of mandamus.

There is no substantial disagreement as to the facts, which are set forth in the case of People ex rel. Richards v. Allmam, supra, 289 Ill. App. 586. All of the parties plaintiff here were parties to the previous case (which we will hereafter allude to as the Richards case). In that case some of them appeared as plaintiffs, some as coplaintiffs, some as intervening petitioners, some as defendants, and some as counterclaimants. A thorough examination of the record in the Richards case and the pleadings in the instant case convinces us that under the doctrine of res judicata whatever was passed on in the Richards case is binding on the parties in the present case. In the Richards case we decided that the action of the civil service commissioners on June 15, 1933, in canceling promotion list 4701 (on which the names of plaintiffs herein appeared) was authorized. Plaintiffs urge that the action of the civil service commissioners in obeying writs of mandamus, whereby a large number of men on the list were appointed as sergeants after the list had been thus canceled, reinstated the list. The answer to that contention is that in the Richards case we decided that the commissioners were within their rights in canceling the list. The list on which plaintiffs base their rights is functus officio, and plaintiffs have not called our attention to any statute or authority which holds that a list that has been canceled, as this one was, can be revived by any act of the commissioners. We have carefully examined the records in the 2 cases and the points argued and find that the trial court properly sustained defendants’ contention that the action was barred under the principle of res judicata.

Plaintiffs argue that the motion on which the court acted was unsupported by an affidavit as contemplated by section 48 of the Civil Practice Act (sec. 172, ch. 110, Ill. Rev. Stat. 1937). Our quotation from the affidavit of Mr. Lundquist shows that there was an affidavit. The facts were based entirely on records available to all the parties and in our opinion the affidavit was sufficient. Furthermore, the record shows that plaintiffs filed a counter-affidavit and did not object nor make any point that defendants’ motion was not supported by a proper affidavit. Therefore, even though a proper affidavit were not attached, such failure of plaintiffs to object amounted to a waiver of the point.

Plaintiffs maintain that the burden of proving the defense of res judicata is on the parties raising it. That statement is correct. As pointed out, the proof consists entirely of matters of record and the dispute arises as to the conclusions to be arrived at from the record. We have already pointed out that the records establish the defense of res judicata.

Plaintiffs assert that where a cause of action is imperfectly or insufficiently pleaded the judgment therein does not bar a subsequent cause of action well pleaded. In the Richards case the cause of action was not defectively pleaded. That opinion involved the construction to be placed on various sections of the Civil Service Act (ch. 24½, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 23.001 et seq.]).

Our perusal of the records, abstracts and briefs filed in the 2 cases and the opinion in the Richards case convinces us that the instant action is barred by the previous judgment.

We have considered other points that have been urged by counsel, but in view of what has been said it is unnecessary to further extend this opinion.

For the reasons stated, the judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

John J. Sullivan and Friend, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Frieud

license: Public Domain

text:
    People ex rel. Ernest Palmer, Director of Insurance of the State of Illinois. Henry G. Miller, Receiver for Central Mutual Insurance Company of Chicago, Appellee, v. Central Mutual Insurance Company of Chicago, Appellant.
    Gen. No. 40,300.

      Opinion filed February 27, 1939.
    Myer N. Roseugard, of Chicago, for appellant.
    Lloyd C. Whitman, of Chicago, for appellee.
   Mr. Justice Frieud

delivered the opinion of the court.

Central Mutual Insurance Company of Chicago, defendant, seeks the reversal of an order entered in the circuit court approving the receiver’s first report and account in an insurance liquidation proceeding filed by the director of insurance of the State of Illinois.

It appears that on January 8, 1937, the attorney general, at the request of Ernest Palmer, director of insurance, filed a petition in the circuit court, pursuant to an act in relation to delinquent insurance companies, approved June 26, 1925, in force July 1,1925, and subsequent amendments thereto (par. 105, ch. 73, Ill. State Bar Stats. 1935) to liquidate the defendant company, because of its alleged insolvency. January 11, 1937, the court entered an order finding the company insolvent and that sufficient cause existed for the appointment of a receiver to take possession of its assets and to liquidate its business; that the receiver, when appointed, should enter into a bond in the sum of $50,000, with sureties to be approved by the court, and should immediately take possession of the assets of the company and proceed to liquidate its affairs. Accordingly, Henry G. Miller was appointed by the insurance commissioner as receiver, and after filing his bond, he took possession of the office of defendant company and proceeded to marshal and liquidate its assets.

January 12, 1937, the receiver had leave to employ Lloyd O. Whitman as his counsel, and thereafter Mr. Whitman entered Ms appearance in the cause. During the first 10 months of his administration the receiver and his counsel prepared and presented numerous petitions, pertaining to the administration of the estate and the liquidation of defendant’s assets, and had orders thereon authorizing the settlement and compromise of claims, the foreclosure of mortgages and other matters pertaining to the liquidation and marshaling of the company’s assets.

April 7, 1937, the receiver filed his petition seeking compensation on account for himself and his attorney for services from January 11, 1937, to March 15, 1937, alleging that no payments on account of fees had been made to the receiver or his attorney; that on and for upward of 2 weeks after January 11, 1937, the receiver’s entire time, often including nightwork and work on holidays, was completely occupied handling company accumulated and incoming mail, telegrams and long distance and local telephone messages and immediately urgent details of the receivership, and that thereafter until March 15, 1937, the receiver’s duties had required “all but a very small part” of the receiver’s working hours, which had been from 7 to 9 hours, and sometimes longer a day; that his activities and problems in and outside Illinois required almost daily conferences and co-operation with his attorney; that in the period from January 11, 1937, to March 15, 1937, Mr. Whitman had devoted 217 hours of his own time and provided and furnished 132 hours services of his professional associates (aggregating 349 hours), who were lawyers of ability, pursuant to his employment by the receiver. The petition presented details of the nature and occasions for the professional services rendered, and prayed for the allowance of $3,500 on account of receiver’s fees and a like sum to his attorney.

Pursuant to this petition the court, April 7, 1937, made a draft order allowing $3,000 each to the receiver and his counsel on account, the material portions of which are as follows: “that the Court finds that the Receiver and his counsel rendered substantially the services set forth in the petition, and that it is fair and equitable that at this time the Court, without determining the amount ultimately to be allowed herein to the Receiver and his attorney for their services heretofore or hereafter rendered, to authorize the payment by the Receiver of reasonable amounts to himself and to his counsel, chargeable against any fees which may hereafter be allowed to them, respectively, for and on account of their services, past or future, and that the reasonable amount so authorized is $3,000 to each.”

Subsequently, December 20, 1937, the receiver filed another petition praying for the payment of moneys to himself and his attorney on account of services, and the court 'entered another order allowing $3,000 each to the receiver and his counsel on account of services rendered by them from March 15, 1937, to November 30, 1937. The order recited the allowance of fees on account April 7, 1937, and found that the receiver and his attorney had rendered services substantially as set forth in the petition, and that it was fair and equitable at the time, and without determining the amount ultimately to be paid to the receiver or his counsel for services theretofore or thereafter rendered, that the receiver be authorized to pay to himself the further sum of $3,000 and a like sum to his attorney, chargeable against fees which might thereafter be allowed.

December 17, 1937, the receiver filed his first verified report and account, covering cash receipts and disbursements from January 11, 1937, to November 30, 1937, by means of which he sought to advise the court of certain major and outstanding matters involved in the administration of the estate, requiring the continuing and further attention of the receiver, some of which were reflected in one or the other of the 31 petitions theretofore filed by the receiver, and upon which orders of authorization had been entered by the court. The receiver showed his appointment, the filing and approval of his bond, the appointment of Whitman as his attorney, and he set forth in some detail, chronologically, his various acts from the time that he took possession of the defendant’s assets and office until November 30, 1937. The detailed items of the report may be briefly summarized as follows: Immediately upon taking possession the receiver examined the affairs and assets of the company, settled many cases involving collateral, and thereby collected $10,937.14, carried on litigation in trial or Appellate Courts as to certain pending cases involving collateral notes and other suits; recovered judgment against St. Paul Mercury & Indemnity Company in the municipal court of Chicago for $15,000, and secured an affirmance of the cause in the Appellate Court for the First District of Illinois, and thereafter settled the cause for $15,000, waiving only interest and costs, which sum was deposited to the receiver’s account; that he had pending or in contemplation foreclosure suits on trust deeds securing an aggregate of notes of the principal face value of $74,000; that he had sent out notices for filing of claims pursuant to the court’s order to some 29,000 known policyholders and other claimants, and that to and including October 15, 1937, 2,547 claims, aggregating $4,311,806.65, had been filed, and since then more than 30 more claims had been lodged with the receiver, aggregating $44,305.85; that among the total aggregate claims filed was the claim of Lloyds of London, for $117,830.11, for claimed balances of premiums on several reinsurance contracts between Lloyds and the defendant company. The receiver showed that defendant company had been authorized to do business in 16 States, in some of which receivers had been appointed for the company, where local counsel had to be consulted and employed. Attached to his report was a statement of cash received and disbursements, and vouchers for all expenditures made from January 11, 1937, to November 30, 1937.

Defendant advances two principal contentions for reversal of the order approving the receiver’s first report and account. It is first urged that a receiver appointed to liquidate an insolvent insurance company is an administrative and not a judicial officer, whose conduct and administration of the estate is fixed by statute; that the power of the court in such a proceeding is limited and not general, and is governed entirely by the grant of power conferred by the legislature in the Insurance Liquidation Act; that under this act the court has no power or jurisdiction to pass upon his conduct and activities, either by original direction or by ratification or confirmation, except that the court may fix or pass upon compensation to be allowed and paid to and by the receiver to himself, his attorney and other employees; and therefore, all orders entered by the court pertaining to administration and liquidation were void, including the approval by the court of the first report and account of the receiver.

Briefly summarized, the statute in relation to delinquent insurance companies (par. 105 and subsections, ch. 73, Ill. State Bar Stats. 1935) specifies the basis for instituting proceedings to liquidate insurance companies at the instance of the director of insurance, provides for the appointment of a receiver by the insurance commissioner for the purpose of continuing the business or to liquidate the same; that where liquidation is found necessary and advisable, it shall be carried out under the direction of the receiver, who may deal with the property in his own name as receiver or in the name of the company, as the court may direct; and it provides for the allowance of preferred claims, the bringing of proceedings against foreign insurance companies and for the appointment of agents, clerks, assistants and attorneys, to advise and assist the receiver. Section 11, par. 105 (11), which is urged by the receiver as the basis affording the court jurisdiction to approve his report and account, reads as follows: “The mode of summoning parties into court, rules of practice, course of procedure, and powers of the court, in all cases arising under this Act, shall be the same as in ordinary proceedings in equity in this State, and as by law provided.” (Italics ours.)

The most recent decision of the Supreme Court of this State, where the powers of the trial court in an insurance liquidation proceeding are expressly passed on, and where such powers were directly in issue, is People ex rel. Lowe v. Marquette Nat. Fire Ins. Co., 351 Ill. 516, decided in 1933. That case arose and was decided under the Insurance Liquidation Act of 1925, before its amendment in 1929. The 1929 amendment changed the original 1925 act in two material respects— (1), it provided that the director of insurance appoint the receiver, whereas the original act designated the director of insurance as liquidator, and (2) in sec. 8 of the original act the director, acting as liquidator, was authorized to employ clerks and assistants, but was not expressly authorized to employ attorneys, and in the 1929 amendment sec. 8 was so changed as to include attorneys and solicitors among those authorized to be employed by the receivers. In People ex rel. Lowe v. Marquette Nat. Fire Ins. Co., supra, the question arose whether the trial court had jurisdiction and power to authorize the receiver to employ attorneys and to provide for their compensation, when such employment was not expressly authorized in the act as then written, and it was held that the court had such jurisdiction and power. In discussing the question, the court said (pp. 531, 532):

“They cite in support of this position Hannah v. Meinshausen, 299 Ill. 525. That case and others cited deal with the equitable jurisdiction of county and probate courts, which, it is generally recognized, are not courts of general chancery jurisdiction but have only such chancery powers as are conferred by statute. Section 11 of the act declares that the court in which the petition is filed shall have the ordinary equity powers. Circuit and superior courts are courts of general chancery jurisdiction, and as such, quite apart from the statute, have the general powers of the Court of Chancery. Courts of chancery have implied powers to do all things necessary to discharge the functions placed upon them by law. An agency of government intrusted and charged with certain powers must also be held to have been intrusted with ample means for their execution. (McCulloch v. Maryland, 4 Wheat. 316, 4 L. ed. 579.) To deprive a court of the power to execute its decrees (referring here to the liquidation decree) is to essentially impair its jurisdiction. Jurisdiction in a court of chancery to enter an order or render a decree includes the power to do that necessary to its execution. (Riggs v. Johnson Co., 6 Wall. 166, 18 L. ed. 768.)”

Defendant relies chiefly on People ex rel. Palmer v. Niehaus, 356 Ill. 104, People ex rel. Palmer v. Peoria Life Ins. Co., 357 Ill. 486, and Republic Life Ins. Co. v. Swigert, 135 Ill. 150, to sustain its contention that the court lacked jurisdiction to approve the receiver’s report and account. The opinion in the Niehaus case was filed in 1934. It was there sought by mandamus to compel the respondent, a judge of the circuit court of Peoria county, to expunge an order entered by him appointing coreceivers of the Peoria Life Insurance Co. The attorney general of the State had filed a petition in the name of the People, upon the relation of Ernest Palmer, director of insurance, to liquidate the defendant company. After a decree was rendered, granting the petition, the director of insurance appointed Charles V. O’Hern as receiver. The court refused to recognize the appointment, and instead, he added to the original decree the order which was sought to be expunged, appointing O’Hern and George A. Shurtleff. The question presented for determination, as stated by the court in its opinion, was whether the court had jurisdiction — “i. e., power to enter such an order of appointment in face of the statutory provision that the appointment should be made by the director of insurance,” and it was held that it did not have such jurisdiction because the power to appoint a receiver was lodged by the statute solely in the director of insurance. Although the court employed language indicating that the powers of the trial court in the liquidation proceeding are limited strictly to the provisions of the statute, the only point involved in the case was whether the court could assume the prerogative of appointment vested by the statute in the director of insurance.

In People ex rel. Palmer v. Peoria Life Ins. Co., supra, there was involved the same appointment of receivers as in the Niehaus case, and also a reinsurance agreement with a new company, made on the application or petition of the additional receiver appointed by the trial court, which was not joined in by the receiver appointed by the director of insurance. Following its decision in the Niehaus case the Supreme Court held that the trial court’s appointment of the two receivers was invalid, and consequently that the court’s approval of the reinsurance agreement on application alone of the additional receiver appointed by it, was erroneous, because title to all the assets of the delinquent insurance company was in the receiver appointed by the director, who was alone authorized to liquidate the affairs of the company. What was said by the court in its opinion with respect to the extent of the trial court’s supervision of the liquidation proceeding was, as in the Niehaus case, not necessary to the decision. This was clearly pointed out in the dissenting opinion of Mr. Justice DeYoung.

In Republic Life Ins. Co. v. Swigert, supra, it was held that the court had no power to direct the receiver to institute suit against the shareholders to collect their subscriptions to the capital stock, after the company had by contract put it out of its power to collect such unpaid subscriptions, because the receiver in such case had no greater power than the company he represented. Section 9 of the Act of 1874 was substantially identical with sec. 11 of the Act of 1925, and in arriving at its conclusion, the court, after quoting sec. 9 of the statute as it then existed, said that (p. 178):

“It is not a power inherent in the court of chancery, and it is not in conformity with the course of procedure and rules of practice which obtain in ordinary proceedings in equity, for the court to clothe its receiver with power to seize and enforce a property right which belongs only to parties who are not before the court, and who are not asking its assistance.” In other words, the court, in construing the provision of the statute giving the chancellor “the powers of courts ... as in ordinary proceedings in equity,” merely held that it was not inherent in a court of chancery to authorize its receiver to seize and enforce property rights belonging to parties who were not asking the court’s assistance and who were not before the court.

A careful examination of the Niehaus case indicates that the Supreme Court did not overrule the decision in the Marquette case, authorizing the court to allow the appointment of counsel by the liquidator, notwithstanding the fact that such power was not expressly given the trial court in the Act of 1925; it only disapproved of the portions of the Marquette opinion describing the liquidator, acting as a receiver, as a judicial officer, and this, as we view it, has no hearing on the question of the trial court’s power to instruct the receiver with reference to his liquidating the business and affairs of the insurance company, pursuant to the decree of liquidation.

More recently we had occasion to pass upon the question of the jurisdiction and power of the chancellor in a bank liquidation proceeding under sec. 11 of the Banking Act (Ill. State Bar Stats. 1935, ch. 16a, p. 160 [Jones Ill. Stats. Ann. 10.11]) in People ex rel. Barrett v. West Side Trust & Savings Bank, 280 Ill. App. 308. Two petitions were filed by the bondholders ’ committee in the liquidation proceeding, the first praying for an order of court directing the receiver to resign on behalf of the bank as trustee under the trust deed securing the bond issue, and the second praying for an order of court directing the receiver to turn over certain of the bonds held by the bank and also certain data pertaining to the bond issue. William L. O ’Connell, the receiver appointed by the auditor, contended that the trial court lacked jurisdiction to entertain such petitions, because its powers in the liquidation proceedings were expressly limited to the provisions of the bank liquidation statute, and the question therefore arose whether the trial court’s jurisdiction in such proceeding was limited to the powers expressly delegated to it in the act. We held that under sec. 11 the receiver was required to resign on behalf of the bank, as trustee, under the trust deed securing the bond issue, and that since there was no specific provision made for enforcing this requirement of the statute, it was inherent in the power of the court to force the resignation. However, as to the second petition, we adhered strictly to the statute and held that the trial court had no jurisdiction to entertain the petition. The Supreme Court in People ex rel. Barrett v. West Side Trust & Savings Bank, 362 Ill. 607, affirmed our conclusion that the court had power to force the receiver’s resignation, but went further by holding that the court should also have allowed the second petition, because it was incidental to the powers vested in the receiver in the liquidation of the bank’s assets. In view of the similarity between the two acts, we regard this decision of the Supreme Court as an indication that the powers of the court in both bank and insurance liquidation proceedings are not strictly limited to those expressly given by statute, but should be sufficiently broad to permit the effective liquidation of the company in the proceeding brought before the court for that purpose. In discussing the proper construction of the bank liquidation act, the court said (p. 616): “If the language employed admits of two constructions, one of which makes the enactment absurd, if not mischievous, while the other renders it reasonable and wholesome, the construction which leads to an absurd result should be avoided.” The reason for this construction is obvious. In the case at bar, the court had entered its liquidation decree, and under general equitable principles it ought to have power to control the execution of that decree by giving instructions to the receiver, as important doubtful questions arise in the course of the liquidation; and this power would necessarily be inherent in the court whether the receiver is designated as an administrative or a judicial officer. In the course of liquidation the receiver of a bank or an insurance company repeatedly encounters doubtful questions, requiring the assistance of the court, and it would be absurd to require him to file independent proceedings each time that he seeks the aid and instructions of the court.

In the People ex rel. Barrett v. West Side Trust & Savings Bank case, supra, the receiver likewise relied on People ex rel. Palmer v. Niehaus, 356 Ill. 104, and People ex rel. Palmer v. Peoria Life Ins. Co., 357 Ill. 486. With reference to these two decisions and the contentions made that the receiver is merely an administrative officer, who is not subject to the jurisdiction of the court, the court said (p. 619): “The principal questions presented for decision in those cases related to the power of appointing receivers of insolvent insurance companies.”

In People ex rel. Palmer v. Acme Plate Glass Mut. Ins. Co., 292 Ill. App. 275, decided in November, 1937, we recognized the jurisdiction and power of the trial court in an insurance company liquidation proceeding to instruct the receiver in matters relating to his liquidation of the company assets. After a petition had been filed by Ernest Palmer for liquidation and dissolution of the defendant company, an order was issued against defendant to show cause why a receiver should not be appointed. The company filed its answer, and thereafter a decree of liquidation was entered by the court. The director of insurance then appointed a receiver, who in the process of liquidating the affairs of the company procured various orders of court including an order fixing the time and procedure for filing claims, for leave to sell furniture and fixtures, to file an inventory of the assets of the defendant corporation, and to foreclose two real estate mortgages held by the defendant. Subsequently, the first report and account of the receiver was filed and approved by the court, and thereafter another report was filed and approved, and orders were entered authorizing the receiver to sell certain mortgage notes held by defendant and to accept a refunding bond and execute refunding agreements. With reference to these orders, the following was said (p. 283): “As we have stated before, the purpose of the decree is to wind up the affairs of the company, in other words, to liquidate, which, as herein indicated, is to wind up the affairs and adjust the accounts of the company, so that whatever is done after the final decree will simply be in enforcement of this decree. ’ ’ ’

The other ground urged for reversal is that the court erred in approving disbursements made by the receiver, particularly as to compensation, without hearing or requiring evidence in support of the necessity, propriety or reasonableness of these expenditures. It is argued that since definite issues were made by the company’s answer, the court should have heard evidence to ascertain the character and extent of the services rendered, rather than to have allowed fees on account to the receiver and his counsel, chargeable against any fees which might hereafter be allowed to them. It is specifically urged that no allowance of fees should have been made by the court for services rendered by the receiver and his counsel and employees in connection with the preparation and filing of many of the 31 petitions dealing with the receiver’s liquidation; that the receiver improperly abandoned the defense of some 700 or 800 cases, with the result that the estate of the defendant was burdened and became greatly impaired; that payment of the judgment by the St. Paul Mercury & Indemnity Company was not brought about as a result of the activity or effort of the receiver; that the expenditure of between $7,000 and $8,000 for stenographic and clerical services is excessive, in view of the matters involved and the value of the assets; and that various other items of service by the receiver and his counsel were not compensable. We make no comment upon the validity of these objections, except with reference to the abandonment of the numerous suits pending against defendant. These suits were numerous, some 750 in all, over 600 of which were for personal injuries and property damages upon which defendant had written liability insurance. To defend these suits would have required an expenditure for attorneys’ fees, court costs, witness fees, etc., in an aggregate in excess of the cash on hand in February, 1937, and the value of the then liquid and immediately marketable assets of the company. The receiver and his counsel argue that it would have amounted to a preference of certain policyholders over others for the receiver to defend some and not all of these suits, and accordingly it was proposed, and the court ordered, that the receiver defend only pending cases wherever necessary to the recovery of involved collateral.

As to the other objections raised, defendant is not precluded from ultimately being heard as to their validity. The receiver’s petitions indicate that extensive and valuable services had been rendered by the receiver and his counsel, for which the allowance on account would not compensate either of them to the extent of the work performed, and the court obviously believed, and was justified in its conclusion, that the $3,000 on account, allowed to the receiver and his counsel under each petition, would only partially compensate them for the services rendered up to that time, and that ultimately a full hearing would enable the court to determine the aggregate amount to be paid to the receiver and his counsel, from which the court would deduct the fees allowed on account. If the sums allowed on account then appear to be disproportionate to the total allowance for services rendered, the court will undoubtedly take that into consideration in making a final order. The receiver’s petitions indicate that for a period of more than 2 months, he and his counsel devoted substantially all their time daily to the duties intrusted to them, aggregating some 349 hours on the part of Mr. Whitman and his associates, and subsequently they rendered necessary services in connection with pending foreclosure suits, the filing of claims by policyholders, and various other matters enumerated in the receiver’s petitions, for which compensation of $3,-000 on account to the receiver and his counsel on 2 different occasions is not unreasonable. If the various items of service to which defendant specifically objects are not properly to be included, defendant may ultimately be heard on these objections; but it is evident from the receiver’s petitions that sufficient services have already been rendered to justify the allowances made.

For the reasons indicated, we are of the opinion that the chancellor’s order approving the first report and account of the receiver and the allowance of fees, on account to him and his counsel, was properly entered, and the order or decree of the circuit court is affirmed.

Order affirmed.

Burke, P. J., and John J. Sullivan, J., concur.


author: Mr. Justice Wolfe

text:
    Cora N. Roggenkamp, Executrix of Last Will and Testament of Henry Roggenkamp, Deceased, Appellee, v. Ella Marks, Appellant, and Emmett Pratt, Defendant.
    Gen. No. 9,352.

      Opinion filed March 7, 1939.
    Wm. S. Schroder and Franklin P. Searle, both of Rock Island, and Arthur H. Shat, of Streator, for appellant.
    Bell, Farrar & Scott, of Rock Island, and Bush & Bush, of Davenport, Iowa, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

This suit was brought under the Injuries Act by Cora N. Roggenkamp, as executrix of the last will and testament of Henry Roggenkamp, deceased, for the death of said Henry Roggenkamp, alleged to have been caused by a collision between the automobile which he was driving and the automobile owned by the defendant, Ella Marks, and driven by the defendant, Emmett Pratt, her agent and servant.

The plaintiff alleges that on August 4, 1936, Rock Island and Moline were both incorporated cities of Illinois, and the city of Rock Island adjoined Moline on the west; that between said cities is what is known as Forty-sixth street, and that the collision occurred on Forty-sixth street, at the intersection of Fourth avenue; that this is a residential portion of both cities; that the plaintiff’s testate was driving his car south upon and across the said intersection, with all due care and caution for his own safety, etc.; that the defendant, Marks, through her agent, then and there drove her motor truck west on Fourth avenue in Moline, and over and upon said intersection, and collided with the automobile of the plaintiff’s testate. The plaintiff then charges the defendants with doing one or more of the following acts: (a) Drove at unlawful rate of speed, (b) Failed to yield the right of way at the intersection, (c) Operated their car so negligently while approaching and crossing the intersection, that they ran into the Roggenkamp car, and the plaintiff was injured and damaged. The defendants filed a motion to dismiss the suit, and attached thereto, a copy of a release that they had procured from Henry Roggenkamp, in his lifetime, releasing the defendants from any and all damages through the said collision. This motion was overruled, and the defendants required to answer.

The answer denied any negligent acts on the part of the defendants. They admit the ownership and agency of the automobile in question, and affirmatively plead their release, as set forth in their motion to strike, and attached a copy of the release to.their answer. To this answer, the plaintiff filed a reply and averred that at the date of the release, the deceased was of unsound mind, and unable to comprehend the nature of the release. She denied that the decedent had for a good and valuable consideration, or otherwise released or discharged, the defendants from liability. To this reply, the defendants filed their answer, and denied the material averment in the reply, and the case was at issue. After the trial had been in progress for some time, it was discovered that Emmett Pratt was a minor, and was not represented by a guardian or guardian ad litem,. The court stopped the trial and appointed a guardian ad litem to represent him. He filed his motion that the case as to him, be dismissed, and the plaintiff confessed the motion, and Pratt was dismissed from the suit, leaving the appellant, Ella Marks, the sole defendant.

At the close of the evidence, the defendant entered a motion for a directed verdict, urging, that the omis_ sion on the part of the plaintiff to return to the defendant, the $50, which had been paid for the release of the liability of defendant, was fatal to her cause of action. The court overruled this motion, and the case proceeded to trial. The jury found the issues in favor of the plaintiff and assessed her damages at $1,500. The defendant made a motion for judgment notwithstanding the verdict, which was denied by the court. The defendant also made a motion in arrest of judgment, which was also denied, and the court entered judgment on the verdict for $1,500. From this judgment, this appeal is prosecuted.

It is urged by the appellant that the plaintiff’s testate was guilty of contributory negligence, which was the proximate cause of his injury, and the verdict should not stand. From a review of the evidence in this case, we are convinced that the verdict of the jury is not against the manifest weight of the evidence, and the judgment should not be reversed for that reason.

It is conceded that Henry Roggenkamp, in his lifetime signed the release introduced in evidence. The defendant claims this is a complete bar to the plaintiff’s cause of action. That he received the $50 consideration mentioned in such release, and retained it, is also conceded. The appellant seriously contends that the failure of the plaintiff to return this $50 to the defendant before the close of the trial, is an absolute bar to her cause of action. Before discussing the law relative to this case, it should be noted that the plaintiff does not charge the defendant with any fraud in procuring the release in question. At the trial, Mr. Searle, attorney for the defendant, made an objection to a question as follows: “I wish to make a formal objection. The plaintiff in this case, is not charging that this lease was obtained by fraud.” Mr. Bell, one of the attorneys for the appellee replied, “That is all right Mr. Searle, we are not charging fraud.”

In the case of Pawnee Coal Co. v. Royce, 184 Ill. 402, the plaintiff, Royce, was injured in the defendant’s* coal mine and signed a release to the company for all the damage he had sustained. Later, Mr. Boyce started suit against the company, alleging the injuries, etc., and the defendant plead the release. Mr. Boyce did not return the money and the goods he had received in payment for the release, but procured a judgment against the coal company for damages, far in excess of the amount paid for the release. The court, in passing upon this question, used this language: “It is a familiar and well established principle of law that where a person attempts to avoid a contract or instrument on the ground of fraud or misrepresentation he must return or restore all he has received under it, or offer to do so, or no action can be maintained by him. (Ellington v. King, 49 Ill. 449; Bowen v. Schuler, 41 id. 192; Wheeler v. Mather, 56 id. 241; Wolf v. Dietzsch, 75 id. 205.) And while the plaintiff might not be compelled to rescind before suit brought, under certain circumstances, as, for instance, where he does not know of the existence or nature of the contract, the law is that the rescission and offer to restore must be at the earliest practicable moment whenever that may be. (Hall v. Fullerton, 69 Ill. 448; McCarty v. Marlette, 80 id. 526.) The release in question, if fairly entered into, would have constituted a complete bar to the cause of action. (Kingsley v. Kingsley, 20 Ill. 203; Illinois Central Railroad Co. v. Welch, 52 id. 183.) If, however, a release is procured by the perpetration of an active or positive fraud upon the plaintiff by the defendant or its officers, there may be circumstances under which the plaintiff will not be required to return or offer to return the consideration received for the pretended release, but he may bring his suit without doing so.”

The court then reviewed many cases where it was decided that it was not necessary to tender back money received for the release, but concludes with a statement that these cases all show that the defendants were guilty of some fraudulent act in procuring the releases, and that it obviated the necessity of returning the money paid in settlement for the release, and further if the release is a fraud on the party procuring the release, it must be an actual, intended fraud. Other cases, both in our Supreme Court and Appellate Court have held the same. (Huiller v. Ryan, 306 Ill. 88; Fussell v. Hail; 134 Ill. App. 620.)

After the appellant had entered its motion for a directed verdict for failure of the plaintiff to return the consideration for the release, the attorney for the plaintiff tendered $50 to the attorneys for the defendant, as a return of the money which had been given for the release. The defendant refused to accept the money, and claimed that it came too late and insisted that the plaintiff should have tendered the money as soon as she learned of the release.

The place, where the accident in question occurred, was misstated in the copy of the release attached to defendant’s answer, but it gave notice to the plaintiff and her attorneys, that Mr. Boggenkamp, in his lifetime, gave such release. In her reply to the defendant’s answer which set forth said release, she did not allege this as a defense of the same, but “that at the time the release was procured, Mr. Boggenkamp, was not competent to make the same.” When this error in the copy was discovered, it was corrected, and it appears from the record, that some time elapsed between the correction and the tender of the $50 made in open court.

This court in the case of Worthey v. Cleveland, C., C. & St. L. Ry. Co., 251 Ill. App. 585, quoted with approval from Pawnee Coal Co. v. Royce, supra, and concluded that it was necessary that a party to a contract desiring to rescind it for fraud must make his election and to do so promptly after learning of the fraud. (Greenwood v. Fenn, 136 Ill. 146; Hansen v. Gavin, 280 Ill. 354.) A party should not be permitted to speculate with reference to the possible outcome of his suit for damages. (Paulen v. Springfield Consolidated Ry. Co., 166 Ill. App. 382-384.)

It seems to us that the law is well established that it was incumbent upon the plaintiff in this suit to tender to the defendant the consideration paid for the release at the earliest possible time after they had learned of the release.

The next question to be considered is, Did the plaintiff by waiting until the evidence was closed at the time of the trial, and after the defendant entered her motion for a directed verdict, bar recovery in this case? The only case that has been called to our attention, and that we have been able to find, which bears directly upon this question, is Brown v. Walker Lumber Co., 128 S. C. 161, 122 S. E. 670.

The facts in the Brown case are very similar to the case we are now considering. Mr. Brown had been injured by the lumber company’s truck. An insurance agent representing the lumber company had procured a release for $75 from Brown for all damages he had sustained. Brown started suit for damages against the lumber company. The defendant set up the release by the way of an answer, and claimed it to be a bar to the plaintiff’s cause of action. The plaintiff replied that the $75 had not been paid by the defendant, but by an insurance company, and also that the release had been procured by fraud. There was no attempt made to return the $75 until after the evidence had been concluded, and the defendants made a motion for a directed verdict, because the plaintiff had not tendered to the defendant, the consideration paid for the release. The court, in discussing the case, had this to say: “At the trial, after defendant had moved for a directed verdict, plaintiff’s counsel made the following offer: ‘Mr. Glraydon (attorney for plaintiff), I take the position — I will state that if the company wants to make demand of Brown for the return of this money we stand ready to tender it to them; but the Walker Lumber Company could not receive it under the undisputed testimony. ’

“ (7) We are clearly of the opinion that in no view of the case was this a sufficient tender or offer. In the first place, plaintiff’s proposal was merely a conditional offer that if ‘the company’ (whether the insurance company or the lumber company does not appear) wanted to make demand for return of the money a tender would be made, coupled with the contention that the defendant had no right to receive it. The defendant had made no demand for the return of the money, but on the contrary was insisting that the plaintiff keep the money and abide by his contract. There was, it would seem clear, no such unconditional, definite offer to return the money as would entitle the plaintiff to treat the contract of release as rescinded. In the sec-. ond place, if the offer had been sufficient, it came too late. Up to the time of the motion for direction of the verdict the plaintiff was insisting upon retaining the benefits which he had received under the contract releasing the defendant from liability, and, at the same time, insisting upon escaping the obligations imposed by the contract on the theory that the money had not been paid by the defendant but by a third party. He took the risk of that theory proving, as it was, untenable. At the conclusion of the evidence, the condition precedent to avoiding the release for fraud, viz. the return or tender of the consideration for the release, had not been complied with. Levister v. Ry. Co., supra. The underlying principle of the rule laid down in the Levister case is that the right of one to rescind a contract for fraud is subject to the condition that if, after discovery of the fraud,' he still avails himself of the benefit of the contract, or permits the other party to proceed with the execution of it, he will be held to have waived the tort and affirmed the contract. The plaintiff here knew of the alleged fraud, certainly, before the trial; he set it up in his reply to the answer. But he did not return or offer to return the money paid him until all the evidence had been adduced at the trial and a motion made to direct a verdict. In that situation we think there was clearly a waiver of any right the plaintiff might have had to avoid the contract for fraud. ’ ’ The rules of law, as stated in the above case, are applicable here, and we think are the correct ones.

It is our conclusion that the plaintiff in neglecting to tender to the defendant the consideration for the release in question, until after the defendant entered a motion for a directed verdict, is now barred from a recovery, and that the court erred in not sustaining defendant’s motion for a directed verdict.

The judgment of the trial court is hereby reversed.

Reversed.


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    Alice Bentkowski, Minor, By Frank Bentkowski, Her Father and Next Friend, Appellant, v. Jennie L. Bryan and E. C. Pierce, Appellees.
    Gen. No. 9,368.

      Opinion filed March 7, 1939.
    Wright & Kamin, of Chicago, and Kerr & Phillips, of Pontiac, for appellant; Alfred Kamin, of counsel.
    F. A. Ortman and Adsit, Thompson & Herr, all of Pontiac, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

Alice BentkowsM, a minor, by Prank BentkowsM, her father and next friend, filed a suit in the circuit court of Livingston county, against Jennie L. Bryan and E. C. Pierce for damages that she alleges she sustained through a collision between a car in which she was riding, and driven by her uncle, Julian Niemietz, and a car owned by Jennie L. Bryan, and driven by E. C. Pierce, her chauffeur. The complainant alleges that on October 25, 1936, the defendant, Jennie Bryan, by her agent and servant, E. C. Pierce, possessed and operated and controlled an automobile on Route No. 66, near the village of Cayuga, Illinois; that on the day aforesaid, the plaintiff was a passenger in an automobile which was being driven by her uncle on said highway, and while in the exercise of snch ordinary and due care and caution for her own safety, as could reasonably be expected of a child of her age, understanding and experience. The defendants and each of them, individually and by agent, or servant, “then and there misconducted themselves towards the plaintiff in one or more of the following ways: (a) They carelessly and negligently drove their said automobile into the automobile in which the plaintiff was present, (b) With conscious indifference to surrounding circumstances and conditions, they wilfully and wantonly drove their said automobile into and upon the automobile in which the plaintiff was present, (c) Contrary to Paragraph 151 of Article VIII of the Revised Motor Vehicle Laws, of Illinois, they carelessly and negligently drove their said automobile on the left half of the roadway, (d) Contrary to Paragraph 49(b) of Article "VT of the Revised Motor Vehicle Laws of the State of Illinois, they drove the said automobile at an excessive and unreasonable rate of speed.” The complainant further charges, as a direct and proximate result of the misconduct, etc., a collision occurred and the plaintiff was greatly injured and damaged. She asked judgment for said injuries in the sum of $75,000.

The defendants filed an answer to the complaint, which admitted the ownership of the automobile, and the agency of E. C. Pierce, in driving the same. The defendants specifically deny each and every allegation of negligence, carelessness, misconduct, or wanton conduct in the management of their car. They specifically deny that the plaintiff sustained any damage, because of any misconduct on their part, or that she is entitled to a judgment for damage against them, for any amount. The case was submitted to a jury for their consideration. During the trial, the plaintiff entered a motion to strike from the complaint, the charge of wilful and wantqn conduct on the part of the defendants. This motion was granted, and the same was withdrawn from the consideration of the jury. At the close of the evidence, the defendants entered a motion to exclude all the testimony of the plaintiff, and to instruct the jury to find them not guilty. This motion was refused. The jury found the defendants not guilty, and the plaintiff entered the usual motion for a new trial, which was denied, and the case is brought to this court for review.

The appellant relies upon two errors for the reversal of the judgment: First, that the verdict and judgment are contrary to the manifest weight of the evidence. Second, the court erred in giving defendants’ instruction No. 9.

The record discloses, at the time and place of accident, that the pavement was an 18-foot concrete highway ; that it was raining, or a drizzly day and the pavement was very wet and slippery; that the defendants were on their way from Chicago to their home in Peoria; that Jennie Bryan was the owner of the car, which was being driven by her chauffeur, E. C. Pierce ; that Jennie Bryan was accompanied by a lady, and they were sitting in the back seat of her Buick automobile ; that the car was proceeding in a southerly direction; that the plaintiff was riding in her uncle’s Chevrolet along the same highway, and proceeding in a northerly direction, and that the collision occurred near the village of Cayuga.

The plaintiff offered evidence tending to show that the Bryan car, as it was being driven along on this pavement, was on the wrong side of the highway; that it was on the left side of the black line, and that the driver of the Chevrolet attempted to drive his car over on his left side of the pavement, in order to avoid a collision with the oncoming Bryan car, but that a collision did occur, and the child, Alice Bentkowski, was seriously injured. The defendants and their witnesses denied that the Bryan car was being driven on the left side of the black line, and claimed that they were in the proper lane of traffic; that just before the accident, the Niemietz car skidded to the right of the pavement, and the right-front wheel went off the pavement, and Niemietz, in pulling the car back onto the pavement, lost control of the same, and it shot over in front of the defendants’ car, and the collision occurred. The evidence tends strongly to show that this did happen. The witnesses testified that there was a fresh track or an imprint of a wheel of a car in the mud just off of the pavement, a short distance south of where the accident occurred. There was clay mud on the right-front wheel of the Niemietz car, and on the other wheels there was black slimy mud. Evidently, the jury believed the evidence of the defendants in preference to that offered by the plaintiff, and that the Niemietz car did skid and cause the accident. From a review of all the evidence, we think the jury was justified in coming to that conclusion.

The defendants’ instruction No. 9, is as follows: “You are instructed that if you believe from a preponderance of the evidence that the plaintiff was injured as the result of a mere accident which occurred without the fault, either of the plaintiff or of the defendants, or either of them, then you are instructed that the plaintiff cannot recover, and you should find the defendants, Jennie Bryan and Ernest Pierce, not guilty.”

Before the arguments of counsel to the jury started, the plaintiff asked to see the defendants’ tendered instructions. They were given to the plaintiff’s attorney, who examined them, and the court specifically asked the attorney, if he had any objection to instruction No. 9, which is now criticized, and he said that he did not. The plaintiff now insists that it was error to give this instruction. He admits that he examined it and assured the court, that he had no objections to that instruction, but now insists it was error to give it, and because his client is a minor, 12 years of age, he could not bind her by his consent to have this instruction given when, in fact, it was a bad instruction. The appellees insist that the appellant is bound by the statement he made before the instruction was given, “that it was a good instruction, and he had no objection to it”; that after he has let the case go to the jury without any objection, he should not be allowed to speculate on what the verdict of the jury might be, and to say now that this instruction is erroneous. The appellees also contend that regardless of whether or not the plaintiff can properly raise this question, the instruction is good, and under the circumstances in this case, should have been given.

The defendants’ evidence tended to show that they were not guilty of any negligence on their part, which proximately contributed to the injury of the plaintiff, and that the damage was not caused by the negligence of the plaintiff, the driver of the car in which she was riding, but by the skidding of the car which went off of the pavement, and while attempting to get it back onto the pavement, the driver lost control of the same, and drove directly into the path of the oncoming car. This is the theory upon which the defendant tried the case. It is a well settled rule of law that each side in any litigation is entitled to have the jury instructed relative to the theory of the law, upon which the case is tried.

The only authority cited by the appellant to sustain her contention, that the court erred in giving this instruction, is one from the Fourth District of the Appellate Court entitled the Mississippi Lime & Material Co. v. Smith, 282 Ill. App. 361. The appellee also relies upon this case. After discussing the facts in this ease, the court uses this language; ‘ There is a suggestion that an accident brought about Douglas’ death. That suggestion does not come from any evidence or circumstance in the case. It comes for the first time when the court by its charge injected into the case the theory that the death of Douglas might have come about through an accident, and if it did, there could be no recovery. It is true that this part of the charge is given in most personal injury cases, and in most injury cases the charge is proper, but in this case we can see nothing in this record, — certainly not of fact, and not of circumstance, — which could have suggested to the jury that the death of Douglas might have come about through an accident. It was wrong in our judgment for the court to make that suggestion for the first time. Instructions which suggest matter not suggested by the evidence have been universally condemned by our Supreme Court.”

The instruction given in the Mississippi Lime & Material Company case is identical with the one we are now considering. An examination of the language used by the court in the Mississippi Lime & Material Company’s case discloses that there was no evidence on which to base such instruction, and in their opinion say: ‘ That such instruction is given in most personal injury cases, and in most of them, that such a charge is proper.” In the case of City of Chicago v. Lavelle, 83 Ill. 482, the court, after discussing the facts, as appearing from the evidence, say: “But, independent of this question, the record contains another error, for which the judgment must be reversed. The appellant requested the court to give to the jury the following instruction: ‘If the jury believe, from the evidence, that the alleged injury was accidental, and that neither the plaintiff nor the defendant was negligent, the jury should find the defendant not guilty. ’ This instruction the court refused, nor did any other instruction that was given contain the same principle. If it be true that the city was free from negligence, as the evidence introduced on the part of the defense tended to establish, and if it was also true that the injury was accidental, no argument is needed to show that the city could not be held responsible for the damages appellee had received. We perceive no objection to the instruction. The principle therein announced is correct, and it should have been given.”

In the case of Brown v. Richardson, 177 Ill. App. 488, the court refused to give a similar instruction in a personal injury suit. The plaintiff recovered a judgment, the same was reversed because no instruction given stated the law in regard to a mere accidental occurrence, when neither party was at fault, and held that the instruction should have been given.

Whether the plaintiff could, or could not waive any error by the trial court, in giving instructions to the jury, is not necessary for this court to decide, because the abstract shows that at the conclusion of the instructions given by the judge to the jury, we find the following : “To the giving of each and every of said instructions, the plaintiff by her counsel, then and there excepted. ” This exception reserved any right that the plaintiff might have had to object to the instruction given to the jury, on behalf of the defendants. We thinfr the instruction was a proper one in this case.

We find no reversible error in this case, and the judgment of the trial court is hereby affirmed.

Affirmed.


text:
    Jean H. Waxenberg, Complainant, v. Ethel G. Brown et al., Defendants. Nathan Ginsberg, Appellee, v. Ruth Ginsberg Prell, et al., Cross Defendants.
    Gen. No. 9,389.

      Opinion filed March 7, 1939.
    John K. Newhall and David B. Gtvler, both of Aurora, for appellants.
    Barnabas F. Sears and Thomas P. O’Malley, both of Aurora, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

This is an appeal by the executors and trustees of the last will and testament of Rachel L. Ginsberg, deceased, from a decree of the circuit court of Kane county, Illinois, construing said will and also directing said executors and trustees to pay to appellee, as cross complainant, attorneys’ fees in the sum of $1,500.

Jean H. Waxenberg, a daughter and legatee under the will of Rachel L. Ginsberg, on October 18, 1933, filed her bill to construe said will. On January 16, 1936, the complainant, Jean IT. Waxenberg, filed a supplemental bill in said cause. Answers by appellants, and appellee were filed to her original and supplemental bill. On June 30, 1938, prior to the entry of the final decree, the court, on motion of Jean H. Waxen-berg, dismissed her bill and supplemental bill, without prejudice to the rights of the cross complainant (Nathan C. Ginsberg), to proceed to a hearing and decree, on his cross-bill and answers thereto, of the defendants to said cross-bill.

On April 23, 1936, appellee, Nathan G. Ginsberg (cross complainant) filed his cross-bill alleging in substance that Rachel L. Ginsberg was the owner of certain real estate and personal property, consisting of two business buildings and a residence and certain securities, notes and bonds aggregating about $65,000, and that she also owned, at the time of her death, a certain department store which the deceased had conducted, and a stock of goods valued at about $15,000. He alleges that said Rachel L. Ginsberg died leaving Ethel Ginsberg Brown, Golda Ginsberg Stollmaek, Ruth Ginsberg Prell, Mollie I. Ginsberg, Jean H. Ginsberg, Sidney J. Ginsberg and Nathan C. Ginsberg, as her only heirs at law; that said decedent, by her will, purported to dispose of all of her estate as set forth in said will; that there appear to be expressions in the will and codicils which are ambiguous and doubtful, rendering the intent and meaning of the same obscure and by reason thereof cross complainant files his cross-bill to obtain a construction and interpretation of said will and codicils.

Paragraph 8 of said cross-bill alleges that although the residue and remainder of the decedent’s estate was devised and bequeathed to the trustees upon certain trusts therein set forth, that no provision is made in said will or codicils disposing of the corpus or principal of the securities owned by the deceased at the time of her death, and that by reason thereof said securities are intestate property, to which cross complainant is entitled to his proportionate share with the other heirs at law of said decedent under the statute of descent.

Paragraph 9 alleges that the interest which appellee had in the property known as 8-10 South Broadway in Aurora, Illinois, and which he forfeited by reason of a contest of the will, became intestate property and that appellee is entitled to receive his proportionate share with the other heirs at law of said decedent under the statute of descent.

The answer of appellants to the cross-bill of appellee denied that there was any necessity for a judicial construction to ascertain and determine the true intent, meaning and purposes of said Rachel L. Ginsberg, as set forth in her said will. The answer of appellants further alleges that the language of the will and codicils of the decedent is too plain and unambiguous to necessitate or require a judicial construction thereof and that by a reading of same the meaning, intent and plan of the testatrix is made clear; that the testatrix disposed of her entire estate whereby she created a trust of all her property, after payment of debts and payment of certain bequests and devises to her daughter Mollie I. Ginsberg; that by the language of the will and codicils her trust estate, consisting of all her property, except that used for debts and that specifically left to her daughter Mollie, is to be disposed of and divided by the trustees, as follows:

“1. The trustees are directed to sell all the trust property on or before twenty years from January 29, 1933, the date of testatrix’ death.

‘ ‘ 2. Nathan C. Ginsberg shall receive $1.00 from the assets, since he has attempted to set aside the will contrary to the plain provisions thereof.

‘13. The proceeds of the trust estate, therefore, after payment of claims, costs, expenses and charges, and the sum of $1.00 to Nathan shall be distributed pro rata among all children except Nathan, charging, however, the share of Ethel Brown with the debts due testatrix by Otto A. Brown, and charging the share of Jean H. Waxenberg with an amount equal to any and all attorney’s fees and other costs and expenses which testatrix, incurred in defense of the suit commenced by her against testatrix. The amount of these charges, when ascertained, to be distributed pro rata among the children other than Nathan and other than the person against whom the respective charge is made. ’ ’

The answer further denied that the corpus or principal of the securities owned by the decedent at the time of her death was intestate property and denied that appellee was entitled to any part thereof under the laws of descent. The answer further alleges that the will provided for a legacy to appellee from the proceeds of the sale of the real estate known as 8-10 South Broadway, but alleged that appellee had forfeited all his rights to any of the assets of said trust estate, except the $1.00, because appellee had filed and prosecuted an unsuccessful suit to contest his mother’s will.

The answer further alleges that appellee had forfeited all his rights in and to any of the property owned by the decedent and that he had no right or cause of action against appellants by reason of any of the matters and things set forth in the said cross-bill, and that his only interest in the property, was to have paid to him the sum of $1.00, which amount the said appellees were ready and willing to pay him as provided for in said will.

The trial court found that it was necessary to construe and interpret the will and codicils of decedent in order to ascertain and determine whether the decedent did dispose of all of her property and to what extent, if any, said decedent failed to dispose of any of her property and assets and to determine what property, if any, became intestate estate and to whom and in what proportion the same became and is now vested under the statute of descent of the State of Illinois.

The court decreed that as a result of appellee’s unsuccessful contest of said will the cross complainant, Nathan C. Ginsberg, forfeited the one-seventh share of the proceeds that might be derived from the sale of the premises known as 8-10 South Broadway, described in the seventh clause of paragraph 3, of said will, and by reason of said contest appellee is only entitled to receive the sum of $1.00 under the provision of the fifth clause of the codicil dated February 3, 1931, and that the one-seventh of the proceeds of the sale which Nathan C. Ginsberg would have received, goes into the general trust to be distributed by the trustees to the remaining and uncontesting children.

It was further ordered by the court in said decree that as a necessary and proper construction of said will the said testatrix did not dispose of the corpus or principal of the personalty placed in trust and that no directions are given to the trustees as to what disposition shall be made of the same nor as to who the beneficiaries are of the corpus or principal of said securities ; and that as a result, the corpus or principal of said personalty has become, and is intestate estate and is to be administered and paid out as such under the statute of the State of Illinois to the heirs at law of said deceased; that until such distribution, the income from the corpus of said personal property shall be distributed in accordance with the provisions made for the distribution thereof, as set forth in the last will and testament of said Rachel L. Ginsberg, deceased.

After the trial court had rendered its opinion with reference to the will construction phase of the case, appellee filed a petition alleging that he had employed attorneys to appear and assist in the construction of said will and asked to have such attorneys ’ fees taxed as costs against appellants. Appellants filed objections to the allowance of attorneys’ fees as prayed for by appellee and objected to the payment thereof out of the estate of Rachel L. Ginsberg, or to the taxation thereof as costs as prayed for in the petition of appellee.

The court found that appellee was represented in this proceeding by attorneys Shearer, O’Malley and Sears, and that he was entitled to recover his reasonable attorneys’ fees to be paid from the estate of deceased, fixed $1,500 as the sum to be paid and taxed against appellants,

Paragraph 8, of the cross-bill is as follows: “Although the third paragraph of the will provides that all the rest, residue remainder of her estate, real, personal and mixed, is devised and bequeathed to the trustees upon the trusts therein set forth, as modified by codicils, no provision is made in the will or codicils disposing of the corpus or principal of the securities, notes and bonds owned by the deceased at her death and now a part of her estate, either by express stipulation or necessary implication, and your orator avers that said securities, notes and bonds owned by the deceased, is intestate property to which he is entitled to his proportionate share, with the other heirs at law of said decedent under the Laws of Descent of the State of Illinois.”

The above is the principal question presented by this appeal. The parties to this litigation do not disagree materially, as to the law relative to the case. It has frequently been stated by our Supreme Court, that one of the rules for the interpretation of wills, is that the chief object and purpose of the court, in construing a will, is to ascertain and give effect to the true intention of the testator (Strauss v. Strauss, 363 Ill. 442). The will must be interpreted and construed by the language used by the decedent. It is also true that in a will the law presumes that the deceased intended to dispose of all his property, and the courts will adopt any reasonable construction of his will that will sustain this theory, rather than to hold that he intended to die intestate, as to any of his property. The appellee admits this rule to be correct, but seriously insists that the personal property in the trust created by Mrs. Ginsberg, in her will, has not been devised, or bequeathed to any one, either directly, or by implication.

The first part of clause 3 of Mrs. Ginsberg’s will is as follows: “All the rest, residue and remainder of my estate, real, personal and mixed, I devise and bequeath to my three daughters, Euth Ginsberg, Jean H. Ginsberg, and Mollie I. Ginsberg, as trustees upon the following trust.” The will then proceeds with directions of what the trustees are to do with the property. Part is to be sold, and one-seventh interest therein of the Broadway property was to be held by the trustees to pay to Nathan Ginsberg in equal instalments. It also provides that this is exclusive, as to Nathan Ginsberg, and it is to be so construed and that he shall receive no other part, nor interest of the estate of the testatrix. Other portions of the will state how the estate shall be divided, and state specifically that Nathan Ginsberg shall not share in the distribution of these proceeds. There are several codicils to the will. It is mentioned in the first codicil, that Nathan Ginsberg shall not share in the distribution of the estate. The second codicil also states that Nathan Ginsberg shall not share in the distribution of the estate, other than as provided in the "will. The last codicil to the will ratifies all that the testatrix had done in her original will, except where as modified by the codicils.

From an examination of the will and codicils, we think that it clearly shows that the testatrix intended that Nathan Ginsberg should share only in the distribution of her estate, as set forth in the third clause of her will. The question then arises, does the will express that intent with sufficient certainty, to dispose of all the personal property in her estate, or is it intestate property. One of the latest cases on the construction of wills is Strauss v. Strauss, 363 Ill. 442. In the Strauss will, the residuary clause is as follows: “All the rest, residue and remainder of my property whether real, personal or mixed, after the payment of the legacies and bequests hereinbefore set out, I give, devise and bequeath in equal parts to my following named children, to-wit: E. J. Strauss, William Strauss, Benjamin Strauss, Henry Strauss, Helen Greenebaum, Sarah Brucker and Ida Lindauer, that portion going to the said Ida Lindauer, to go to E. J. Strauss and William Strauss as trustees, or their successor or successors in trust, in accordance with clause 6 of this will. In the event that any of the above named children should die before my death or after my death, and before final distribution has been made of my estate, leaving any child or children, then such child or children shall receive its or their parent’s share.” The court held that the Strauss will disposed of all his property.

It will be noted that the residuary clause of Mrs. Ginsberg’s will is far different from the one in the Strauss case. Mrs. Ginsberg clearly states what shall be done with the income from this property, but does not say what shall become of the corpus of the trust fund, nor can such intent be ascertained from the whole will. It is our conclusion that the court properly decreed that the testatrix, Rachel L. Ginsberg did not dispose of the corpus or principal of the personalty placed in the trust, and that the same is intestate property and descends to her heirs, under the statute of descent.

The appellee has assigned cross errors stating that the court erred in decreeing that the income from the corpus of the personalty placed in the trust, should be distributed in accordance with the will of the testatrix. We find no merit in this contention, as we think the original will clearly disposes of the income from this trust estate. Mrs. Ginsberg had the right to dispose of her estate, as she saw fit. The court will give effect to the provision of the will, when it is clearly expressed by the testatrix. The court did not err in decreeing that the income from this trust estate properly belonged to the legatees named in the will.

After the court had orally announced his decision, the appellee made a motion for attorneys’ fees to be fixed by the court, to be paid to the appellees out of the assets of the estate of Mrs. Ginsberg. The appellant resisted the motion and the court allowed solicitors ’ fee of $1,500 and reserved the right to fix further fees for Nathan Ginsberg’s attorneys in event that the case was appealed.

Numerous cases have been cited, both for and against the allowance of attorneys’ fees in similar cases. The law, as expressed by the Supreme Court, is Brumsey v. Brumsey, 351 Ill. 414, 427 is as follows: “Where a testator has expressed his intention in his will so ambiguously that it becomes necessary to prosecute a suit in chancery in order to obtain a construction of the will, the reasonable fees of the solicitors for the complainant, should be paid from the assets of his estate, but we know of no authority in this State, and have been cited to none, which would authorize the payment of solicitors’ fees to a defendant or cross-complainant whom this court finds to have no present interest under the will and therefore no interest in its construction. ’ ’

The attorneys for the appellee criticize the language used by the court in this case, and say the court would have followed some former decisions and affirmed the case, if these decisions had been called to the court’s attention. We have no knowledge of the cases which were called to the attention of the Supreme Court, at the time this case was decided. It is the general rule that the latest expression of the Supreme Court is the law to be followed in other courts in similar cases. The language in the Brumsey case is plain and unambiguous, namely, that a cross complainant who has no present interest, under the will, cannot be allowed solicitors’ fees in a suit to construe the will.

In the case of Craw v. Craw, 210 Ill. 246, the appellee who was one of the executors under the will, asked the court to construe the will, and that certain legatees account to the estate for certain property, In discussing the case, the court used this language: “Appellant complains that the court decreed the costs against him without providing that they should be paid by the estate or in due course of administration. He insists that the case was a proper one for the construction of the will and that the court should have decreed the costs against the estate, with the allowance of a reasonable amount for the fees of his solicitor. Where a trust is involved and the testator has expressed his intention so ambiguously as to make it doubtful and justify an application to a court of equity for a construction of the will and direction as to the execution of the trust, the costs should be borne by the estate, but in this case the bill was not filed merely for the purpose of obtaining a construction of the will and the direction of the court. It is clear that it was filed because complainant thought other children were being favored by his mother and for the purpose of getting something for himself, as an heir. We do not think the court erred in respect to the costs.”

The records show that Rachel L. Ginsberg, the testatrix, died in February, or March, 1933, and her will was admitted to probate March 14, 1933; that in October, 1933, Jean Ginsberg filed a bill to construe the will, and that Nathan Ginsberg was made defendant to said bill, and filed his answer. On January 20,1934, Nathan Ginsberg filed a bill to contest the will of his mother, Rachel L. G-insberg. The appellant alleged that Mrs. Ginsberg, on account of unsoundness of mind' and undue influence, was incompetent to make a will, and that the same should be set aside, and he should receive one-seventh of the whole estate. A decree was entered December 7, 1934, confirming the will. The case was appealed to the Supreme Court on October 24, 1935, and the Supreme Court affirmed the decree of the circuit court. Meanwhile nothing was done to construe the will, until April 23, 1936, when Nathan G-insberg filed Ms cross-Mil, in wMch he alleged that the will of Rachel L. Ginsberg provided, that if any one contested the will, the share wMch was to go to him under the will, should be forfeited and that the interest should go into the general trust to be distributed to the remaining noncontesting children, and the said contesting plaintiff should receive only $1.00 out of her estate, and that by reason of his contesting the will, his share of the estate, which was given him by his mother, under the will, will be intestate property, and that he should share in the distribution of that part of it, the same as the other heirs. At the hearing of the case, the appellee announced that he was receding from that position, and was not insisting on that part of his cross-bill.

Before or at the hearing of the case, $1.00 was tendered to Nathan Ginsberg, as his distributive share under the last will and testament of his mother’s estate, but he declined to accept the $1.00. The court decreed and found that he had forfeited his interest in the testate property of his mother, by filing a bill to contest her will, therefore, he was entitled to only $1.00 under the will.

Under the facts and circumstances above stated, the appellants insist that the appellee is not entitled to attorneys’ fees to be paid out of the estate of Mrs. Ginsberg, because his motive in filing the cross-bill to construe the will was purely personal, and in his cross-bill, he was seeMng relief in his own right, as an heir at law, and not for the benefit of the trust fund. From a review of the evidence, and the pleading in this case, it is our conclusion that the appellee has no present interest under the will, and in filing his cross-bill to construe the will, he was seeking personal gain only, as an heir at law of Rachel L. Ginsberg, deceased, and not the benefit of the trust estate. The trial court erred in allowing the appellee attorneys ’ fees.

That part of the decree which finds that the testatrix did not dispose of the corpus and principal of the personalty placed in the trust, and that the same should descend-to the heirs of Rachel L. Ginsberg, deceased, and also that part that decrees the income from the corpus of the personalty placed in the trust, shall be distributed in accordance with the will, is hereby affirmed. That part of the decree allowing $1,500 to Nathan Ginsberg for attorneys’ fees, and reserving jurisdiction of the case to allow further attorneys’ fees, in the event of an appeal, is hereby reversed.

The decree is affirmed in part and is reversed in part, and remanded to the trial court.

Affirmed in part, reversed in part and remanded.


author: Mr. Presiding Justice Denis E. Sullivan

text:
    Town of Cicero, Appellee, v. Township High School District No. 201, Appellant.
    Gen. No. 40,271.
    Opinion filed March 29, 1939.
    Rehearing denied April 12, 1939.

      Otto A. Jaburek, of Chicago, for appellant; Frank C. Jaburek, of counsel.
    Baumann & Laux, of Chicago, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

The plaintiff, town of Cicero, brought suit at law in assumpsit to recover payment for the water delivered to the J. Sterling Morton High School, an institution maintained and operated by the defendant, Township High School District No. 201. A hearing was had upon the plaintiff’s motion to dismiss the defendant’s amended answer and counterclaim.

On April 22, 1938, the court struck the amended answer and counterclaim and entered judgment for plaintiff in the sum of $2,507.58, on the amended claim from which the defendant brings this appeal.

The counterclaim filed by defendant was to recover money which it had paid to the town of Cicero for water defendant had received from plaintiff during prior years, amounting to approximately $23,462.83, which included the sum of $1,831.56, which latter named sum was paid under protest.

The town of Cicero, plaintiff herein, is an incorporated town within Cook county which maintains a water department in its private capacity and supplies the defendant high school with water. The defendant, Cicero-Stiekney Township High School District No. 201, embraces five communities, namely, the town of Cicero, city of Berwyn and the villages of Lyons, Stickney and Forest View; that said school draws its student body from all five of these townships and that the burden of taxation for its support is levied against all five named townships.

The town of Cicero obtains its water from the city of Chicago and pays the said city for it and mains are run through the town of Cicero which furnishes the water to its inhabitants and various institutions, including the defendant herein.

One of the main contentions of the defendant is that the high school is a “charitable institution” and as such is exempt from making payment for water charged, as provided under the ordinance of the town of Cicero of July 19, 1920. Said section reads as follows :

1 ‘ (Exemptions — Charitable, Municipal, Religious and Educational Institutions, and Armories):

“The Bureau of Water shall remit and cancel all water rates and charges heretofore levied and assessed or which may hereafter be levied and assessed against such property of any charitable or religious institution in the Town as is used in the immediate conduct of carrying on of the charitable or religious purposes of such institution, or which have been heretofore or may hereafter be levied and assessed against any armory of the National Guard.

“The Bureau of Water shall keep or cause to be kept accurate accounts against all institutions exempted from the payment of water rates and charges. Said account shall show the amounts so cancelled as a credit to the total waterworks collections and as a debit to the institutions specified. All such institutions, however, shall be provided with a water meter, and unnecessary waste of water shall be eliminated.”

Defendant’s main contention as we understand it is" that the public schools are a charitable organization as mentioned in the ordinance and that water charges assessed against the defendant are taxes and cannot lawfully be assessed against said defendant because of the exemptions contained in the provisions of the Revenue Act of 1872 and the amendments thereof.

Defendant in its statement of points alleges that water charges are taxes, and for that reason they should be governed by the revenue law. With this we do not agree. As the Supreme Court said in the case of People ex rel. Brockamp v. Schlitz Brewing Co., 261 Ill. 22, page 25:

“While the words ‘taxes, rents or rates’ are used in the statute, the word ‘rates’ would probably be the better term. The law gives municipalities the right to establish water-works systems and supply water to all who may desire to become consumers and establishes the rate or price such consumers pay. When a municipality establishes a system of water-works, its rates and charges to those who. use the water are imposed and collected, not as a tax but as compensation for a commodity used. (City of Chicago v. Northwestern Mut. Life Ins. Co., 218 Ill. 40.) For many reasons that are apparent, such rates or charges for the use of water are not a tax within the meaning of the term as used in our Revenue law. The obligation to pay rests upon the contract made between the user of water and the municipality. A tax is imposed, not by reason of a contract, but as the regular contribution which all must make for the support of the government. When a municipality goes into the business of furnishing water, while such business is more or less public in its nature, it does so not in the capacity of local sovereignty. (Wagner v. City of Rock Island, 146 Ill. 139.) The obligation of the consumer to pay rests upon a contract entered into between the city and the con’smner, which contract the consumer had an option to make or not, as he pleased. The municipality has the right to charge for the service when the contract has been made and performed on its part, and the statute gives a lien upon the premises and real estate of the consumer so supplied with water by the municipality and such charges can be collected and the lien enforced, but such contractual relation does not give the municipality the authority or power to collect these charges as delinquent taxes under our Revenue law.”

It is further argued by defendant in substance that public schools are charitable institutions as contemplated by the law and are, therefore, exempt from the payment of water charges.

In Congregational S. S. & Pub. Society v. Board of Review, 290 Ill. 108, the court in defining what was meant by the term “beneficent and charitable organizations,” at page 112, said:

“The definition of a charity which we adopted in Crerar v. Williams, 145 Ill. 625, first laid down by Mr. Justice Gray in Jackson v. Phillips, 14 Allen, 539, is: ‘A charity, in a legal sense, may be more fully defined as a gift, to be applied, consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds and hearts under the influence of education or religion, ... by assisting them to establish themselves in life . . . or by otherwise lessening the burdens of government.’ This definition was approved in Hoeffer v. Clogan, 171 Ill. 462, In re Estate of Graves, 242 id. 23, and Skinner v. Northern Trust Co., 288 id. 229. The editors of the American and English Encyclopedia of Law (5 Am. & Eng. Ency. of Law, — 2d ed. —, 894,) and of Corpus Juris (11 Corpus Juris, 299,) have accepted this definition as comprehensive and satisfactory.

‘ ‘ Charity, in the legal sense, is not confined to mere almsgiving or the relief of poverty and distress, but has a wider signification, which embraces the improvement and promotion of the happiness of man. A charity is a gift to the general public use which extends to the rich as well as to the poor. The test of a charity and the test of a charitable organization are in law the same.” See also Board of Education of Chicago v. Upham, 357 Ill. 263; Board of Education of Alton v. Alton Water Co., 314 Ill. 466; Keime v. Community High School District No. 296, 348 Ill. 228; People ex rel. Board of Education v. Read, 344 Ill. 397; McQuillin Mun. Corp., 2nd Ed. Rev. Vol. 6, ch. 46, p. 533, sec. 2594.

It will be seen from the foregoing citation of opinions that a public high school, supported by revenue derived from a levy of school taxes in a school district upon property located in that district, could not in any sense be construed as a charitable institution.

Other points are raised by the defendant but we do not think they are controlling.

We are of the opinion that plaintiff is entitled to be paid for the water the same as any other commodity such as coal, wood, school supplies, etc., which defendant might purchase from any vendor thereof, which are necessary to continue school activities, and we are of the further opinion that the superior court was right in striking the defendant’s-answer and rendering judgment in favor of plaintiff.

Judgment affirmed.

Hebel and Burke, JJ., concur.