text:
    Union Trust Company et al., Appellees, v. Chicago National Life Insurance Company, Appellant.

      Opinion filed October 3, 1932.
    Karch, Hendricks & Moran, Lee D. Mathias and C. W. Armstrong, for appellant.
    Beasley & Zulley, for appellees.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellees sued on a life insurance policy as guardians of "their minor ward who is the beneficiary named therein. They averred in their declaration that appellant executed and delivered the policy to the insured and set out, in haee verba, the first page thereof from which it appears that upon the performance of certain acts and upon the death of the insured appellant promised to pay the beneficiary the amount of the insurance. They averred that insured died March 1, 1930; that they were appointed guardians; that they furnished appellant with proofs of death; and that they, and the insured, had performed all things on their part to be done, etc. Appellant filed the general issue and a special plea averring that the annual premium due March 24,1929, was never paid and that by reason thereof the policy lapsed and was not in force at the death of the insured. To that plea appellees replied that appellant never took any steps to forfeit the policy. No issue was joined on that averment and appellant made no attempt to prove any affirmative action in that regard. Appellees also replied that there was a waiver and issue was joined thereon. There was a verdict and judgment for $10,111.12 as of September 11, 1930.

Appellant insists that appellees were not entitled to recover because they set out in their declaration and offered in evidence only the first page of a four-page policy of insurance. We held otherwise in Tykalowicz v. Metropolitan Life Ins. Co., 249 Ill. App. 280, and certiorari was denied. The declaration showed the conditions precedent and the performance thereof. The payment of the first premium on a life insurance policy is a condition precedent but the payment of a subsequent premium is a condition subsequent and the defense of a failure to pay it must be alleged in a special plea and proved by the insurer. Benes v. Bankers Life Ins. Co., 282 Ill. 236; Friend v. Southern States Life Ins. Co., 58 Okla. 448, L. R. A. 1917B 208; Haas v. Mutual Life Ins. Co., 84 Neb. 682, 26 L. R. A. (N. S.) 747. The premium in question was a subsequent premium. Appellees offered in evidence the first page of the policy but appellant did not offer the other pages and did not contend in the trial court that they contained any provision that made the payment of a subsequent premium a condition precedent to the right of recovery or that they contained a provision that nonpayment of a premium would avoid or forfeit the policy. If they contained any matter material to the defense appellant should have introduced them in evidence.

If appellant thought the declaration was so defective that it would not support the judgment, that question could have been presented to this court by a proper assignment of error. Chicago, R. I. & P. Ry. Co. v. People, 217 Ill. 164, 172; People v. Wallace, 316 Ill. 120, 122. No such error has been assigned. The legal sufficiency of a declaration is not raised by a motion for a directed verdict. Swift & Co. v. Rutkowski, 182 Ill. 18; Klofski v. Railroad Supply Co., 235 Ill. 146. Appellees proved the payment of the first premium by the recital in the policy that it was paid. Provident Life Ins. Co. v. Fennell, 49 Ill. 180. They also proved that they furnished appellant with proofs of death, their appointment as guardians, and that their ward is the beneficiary named in the policy. That proof showed a prima facie right to recover. Benes v. Bankers Life Ins. Co., 282 Ill. 236.

Appellant’s promise to pay the insurance money is not conditional upon subsequent premiums being paid when due. Appellant proved nonpayment of the premium but utterly failed to prove that the insurance contract contained a provision that nonpayment would, ipso facto, work a forfeiture of the policy. Without such a provision nonpayment of a premium does not avoid the policy. 32 C. J. 1300; 14 R. C. L. 975, but the insurer is entitled to credit for the amount of the unpaid premium and interest thereon. 14 R. C. L. 975. A forfeiture of a life insurance policy for nonpayment of a premium will not be enforced except when definitely contracted for. United States Life Ins. Co. v. Ross, 159 Ill. 476. For the unpaid premium appellant accepted the insured’s note payable in 90 days with interest. The note was not paid but neither it nor that part of the policy in evidence contains any provision to the effect that a failure to pay the note would forfeit the policy or cause it to lapse. In the absence of such a provision the policy continued in force even though the note was not paid. Miller v. Assured’s Nat. Mut. Fire Ins. Co., 264 Ill. 380-388; Mutual Life Ins. Co. v. Allen, 212 Ill. 134; 25 Cyc. 826 ; 32 C. J. 1300; 14 R. C. L. 977.

In Keller v. North American Life Ins. Co., 301 Ill. 198, the court assumed that the premium is a debt and said that a note of the insured given for an existing debt will not extinguish the same in the absence of an agreement to that effect. The court overlooked the fact that prior to the execution of the note the insured had never promised to pay the premium and was not personally liable for the payment of the same. Until the note was executed the premium was not a debt and the insurance company could not sue and recover therefor. Lehman v. Clark, 174 Ill. 279; Mutual Benefit Life Ins. Co. v. Chattanooga Sav. Bank, 47 Okla. 748, L. R. A. 1916A 669, and cases cited therein. When the note was not paid the insurance company could not sue as on an original debt because there was no debt. What the court said in the Keller case as to the premium being a debt, etc., was obiter dicta, as the note given in that case provided that if not paid when due the policy should become immediately forfeited. In that case the attention of the court was not called to Lehman v. Clark, supra, Mutual Life Ins. Co. v. Allen, supra, and Miller v. Assured’s Nat. Mut. Fire Ins. Co., supra. We cannot believe the court intended to overrule those cases without even referring to them.

Under the evidence nonpayment of the premium and the note given therefor do not cause a forfeiture of the policy. Appellant insists there was a forfeiture and appellees as earnestly contend that if there was it was waived. For that reason we deem it advisable to consider the question of waiver. The acceptance of the note waived the time for the payment of the premium until July 21, 1929. On July 12, appellant advised the insured that the note would be due July 21, and requested a remittance by that time. On September 10, 1929, long after the note was due, appellant wrote the insured reminding him of its former letter to the effect that the note would be due July 21, and requested him to give the matter, his immediate attention. The insured then mailed a check for the interest and appellant on September 14, 1929, again wrote him that it had received his check for $6.71 to pay the interest on the note and said: “We note you can take care of the principal within a few days, which will be satisfactory.” That was a further waiver of the time of payment and was not for a specified time. When a waiver is general and not for a specified time, it is not essential to the validity of the policy that the premium be paid or tendered before the death of the insured. Illinois Life Ass’n v. Wells, 200 Ill. 445. The note was for a full year’s premium from March 24, 1929, and when appellant demanded full payment of it, long before the year had expired, it thereby waived its right to forfeit the insurance within the year. Williams v. Empire Mut. Annuity & Life Ins. Co., 8 Ga. App. 303, 68 S. E. 1082; Ray v. Commonwealth Life Ins. Co., 184 Ky. 215, 211 S. W. 736.

After appellant received the interest on the note as shown by its letter of September 14, the insured was never informed that his policy would lapse unless the note was fully paid by a certain time. On the contrary, appellant advised him on February 26, 1930, that another premium would be due and payable on March 24, 1930, and that he should make his check therefor payable to appellant. That shows that appellant had elected to treat the note as an absolute payment of the premium then in default and that the policy was still in force. Ray v. Commonwealth Life Ins. Co., 184 Ky. 215, 211 S. W. 726; Williams v. Empire Mut. Annuity & Life Ins. Co., 8 Ga. App. 303, 68 S. E. 1082; Loftis v. Pacific Mut. Life Ins. Co., 38 Utah 532, 114 Pac. 134, and cases cited therein. The sending of that notice was a waiver of any forfeiture. The fact that the insured died on March 1, 1930, without having seen or read the notice does not destroy its effect as a waiver. Chicago Life Ins. Co. v. Warner, 80 Ill. 410; Illinois Life Ass’n v. Wells, 200 Ill. 445; New England Mut. Life Ins. Co. v. Spring- gate, 129 Ky. 627, 19 L. R. A. (N. S.) 227. A forfeiture may be waived by acts, conduct, or declarations which are not sufficient to create an estoppel. 14 R. C. L. 1181; 32 C. J. 1341; Cox v. American Ins. Co., 184 Ill. App. 419; Adam v. Columbian Nat. Life Ins. Co., 218 Ill. App. 54, in which certiorari was denied.

The insured assigned the policy as collateral security for certain debts, but the assignment expressly provided that the surplus over and above the debts should not be affected thereby. The assignee was only entitled to the amount of the debts secured by the assignment. Sanders v. Soutter, 136 N. Y. 97; Samuel v. Coles, 203 Ill. App. 358. The undisputed evidence is that these debts were paid in full since the death of the insured. The assignee had no further interest in the matter. Appellant expressly promised to pay the insurance money to the beneficiary named in the policy. His right thereto was never revoked except to the extent of the debts secured by the assignment and which have been paid. We hold that the right of action is in the minor beneficiary and that being true the suit was properly brought in the names of his guardians. Liska v. Chicago Rys. Co., 318 Ill. 570.

Other questions are raised and argued but it is unnecessary to consider them because under the law and the evidence there is no defense to the action except that appellant is entitled to credit for the amount of the note for $477.32 with interest at the rate of seven per cent from April 23, 1929, to the date of the judgment, which amounts to $523.54. If appellees will file a remittitur for that amount in this court within 20 days after the filing of this opinion the judgment will be affirmed for the balance, otherwise it will be reversed and the cause remanded.

Affirmed on filing remittitur; otherwise reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Keener

license: Public Domain

text:
    The People of the State of Illinois ex rel. Leo H. Lowe, Complainant, v. Marquette National Fire Insurance Company et al., Appellees. Appeal of Novak Agency and Loan Company et al., Appellants.
    Gen. No. 35,921.
    Opinion filed October 4, 1932.
    Novak & Turek, for appellants.

      Schuyler, Dunbar & Weinfeld, for appellee Alvin S. Keys; Paul H. Heineke and C. Ernest Heaton, of counsel.
   Mr. Presiding Justice Keener

delivered the opinion of the court.

This is an appeal by Novak Agency and Loan Company, a corporation, Charles W. Novak and Joseph L. Long (hereinafter called appellants), from an order entered January 7, 1932, directing appellants to pay $1,088.18 to Alvin S. Keys, receiver, and finding Joseph L. Long and Charles W. Novak guilty of contempt of court and punishing them therefor.

The original proceeding was brought for the liquidation of Marquette National Fire Insurance Company, an Illinois corporation, wherein Alvin S. Keys was appointed receiver. November 3, 1931, the receiver filed his petition in which he alleged that May 21,' 1914, Sarkes Hakalmazian and others executed their note for $2,000, due three years after date, secured by a trust deed to Charles W. Novak, trustee, on real estate in Cook county, Illinois; that the maturity of said note was extended by three extension agreements, the last extension May 21, 1925, extending the payment of $1,500 for five years until May 21, 1930, with interest at six per cent payable semiannually; that said note was on June 5, 1917, reduced by the payment of $500; that Novak Agency and Loan Company or Charles W. Novak, on the maturity of the note as extended, collected from the makers $1,500 and interest thereon, which belongs to petitioner as receiver; that in September, 1930, there was paid on the principal of said note $500; that April 20, 1927, Novak Agency and Loan Company filed a claim in this cause against the Marquette National Fire Insurance Company for $469.85, alleged to be due for unearned premiums, and thereafter filed a petition praying said claim be allowed as a set-off against the said collection of $1,500 and interest; that the court, after a full hearing on February 10, 1930, entered an order dismissing said petition. October 23, 1929, Leo H. Lowe,- as liquidator, made demand in writing upon said Novak Agency and Loan Company and Charles W. Novak, to pay over said $1,500 and interest, and offered to surrender said principal note and interest notes.

By the joint and several answer of the appellants, they admit that the receiver has in his possession the $2,000 note and trust deed, and that there is due and unpaid thereon $1,000, but they deny that on the maturity of said note they collected dr received from the makers of said note the $1,000 remainin'g unpaid thereon; that April 20, 1927, Novak Agency and Loan Company filed its claim with the receiver of the Marquette National Fire Insurance Company for $469.85 for unearned premiums on 46 insurance policies, as agent of said insurance company, which were canceled at the request of said receiver, said receiver agreeing to pay the unearned premiums to said Novak Agency and Loan Company, if it procured and assigned each of said insurance policies and returned them to the receiver for cancellation, which was done; that on the maturity of said note and trust deed, the makers of said note being unable to pay same, the Novak Agency and Loan Company being engaged in the real estate loan business and having a credit with the Marquette National Fire Insurance Company and its receiver for said unearned premiums, agreed to make a new loan to the makers of said note.

The chancellor heard the evidence and found that appellants have in their possession the principal sum of $1,000 and interest accruing thereon from May 21, 1930, aggregating $1,088.18, which said sum was and is the property of the Marquette National Fire Insurance Company and Alvin S. Keys as receiver thereof; that said receiver is entitled to immediate possession of said amount of money, and that said appellants and each of them have failed and refused to turn over and deliver to said receiver said sum of money; that no sufficient cause is shown by said appellants why said money should not be paid to said receiver or that appellants are unable to pay same, but that they and each of them wilfully failed and refused to obey the order of the court to pay over said amount of money to the receiver, and adjudged and decreed that said appellants pay to the receiver $1,088.18 within five days.

The main contention of appellants is that there is no evidence that they or either of them received any money from the makers of the note held by the receiver with which to pay the balance of $1,000 which became due May 21, 1930. We have carefully examined the testimony and find that the court was justified in the findings and did not err, but attained substantial justice in decreeing that appellants have in their possession the $1,088.18, the property of the Marquette National Fire Insurance Company and Alvin S. Keys as receiver thereof, and that said receiver is entitled to the immediate possession thereof.

It is also contended that appellants are entitled to unearned premiums for the 46 policies surrendered. It appears from the testimony of Charles W. Novak that the receiver requested Novak Agency and Loan Company to surrender the policies and file a claim for the unearned premiums. Such a claim was filed and allowed, but not as a preferred claim. Thereafter a petition was filed praying said claim be allowed as a set-off against the collection of the amount due upon the Hakalmazian note, but the court on February 10, 1930, dismissed the petition. No appeal was taken from the order of dismissal. Nowhere in chapter 73 (Insurance) Cahill’s Ill. Rev. Stat. is there any provision giving a preference to claims for the return of unearned premiums over loss claimants, nor was there in the instant case any proof of a reserve fund in the hands of the receiver out of which the claim of Novak Agency and Loan Company for $469.85 could be paid in full. When an insurance company goes into liquidation- it becomes civiliter mortuus, its business is brought to an absolute end and the policyholders become creditors to an amount equal to the equitable value of their respective policies, and entitled to participate pro rata in its assets. (Carr v. Hamilton, 129 U. S. 252; Joyce on Law of Ins., vol. 5, 2nd Ed., p. 5941.) And the funds coming into the receiver’s hands are to be distributed pro rata as to those who have claims against the company (32 C. J. 1049). In the distribution of the assets of an insolvent company, the general rule is, that all creditors are entitled to share equally in its assets in proportion to their claims (32 C. J. 1051). In Moren v. Ohio Valley Fire & Marine Ins. Co.’s Receiver (Ky.), 6 S. W. (2d) 1091, an insurance agent at the receiver’s request procured assignments-of policies and filed a preferred claim for unearned premiums on the ground he had secured the policies at the receiver’s request, and promised to repay him out of the assets of the company. The court held he was not entitled to a preference. See also State v. American Bonding & Casualty Co., 206 Iowa 988, 221 N. W. 585; O’Neil v. Burnett, 263 Pa. 216, 106 Atl. 246. Our conclusion is that under the authorities and the state of the record, the chancellor did not err in denying appellants ’ claim of set-off.

For the reasons indicated the decree of the superior court is affirmed.

Affirmed.

Scanlan. and Gbidley, JJ., concur.


author: Mr. Justice Gridley

text:
    In re Estate of Magdaline Vinces, Deceased. Petition of Anna Spogis, Administratrix of Said Estate, Petitioner and Appellant, v. William Vinces, Respondent and Appellee.
    Gen. No. 35,777.

      Opinion filed October 4, 1932.
    Rehearing denied October 15, 1932.
    Cecil Smith and John B. Fruchtl, for appellant.
    Pines, Morse & Stein and John B. Borden, for appellee; Clarence T. Morse, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

On April 22, 1926, Magdaline Vinces died intestate in Cook county, Illinois. More than three years thereafter, on January 9, 1930, Anna Spogis, her daughter, was by the probate court of Cook county duly appointed administratrix of Mrs. Vinces’ estate, and on June 5, 1930, she, as such administratrix, filed in said court her amended petition under oath, praying that a citation issue directing William Vinces (husband of Mrs. Vinces during her lifetime) to appear “to be questioned concerning the location and disposition of the mortgage of Peter J. Neuman and wife,” belonging to said estate, and praying that the mortgage “be decreed to be the property of the estate to be distributed among her (Mrs. Vinces’) heirs-at-law and next of kin,” etc. The petition was filed under and by virtue of sections 81 and 82, as amended in 1925, of the Administration Act. (Cahill’s St. 1931, eh. 3,82, 83.) On July 2,1930, William Vinces filed his answer, and during March, 1931, there was a trial before a jury resulting in a verdict in favor of petitioner. On March 14, 1931, the court entered judgment on the verdict and ordered that respondent, William Vinces, deliver to Mrs. Spogis, as administratrix, “the two first mortgage real estate gold bonds, Nos. 33 and 34 respectively, each in the sum of $2,000, executed by Peter J. Neuman and wife, dated January 3, 1928, together with all interest coupons due on or after January 1, 1930.” From the order or judgment respondent prayed an appeal to the circuit court which was allowed upon his filing a bond in the sum of $4,500 within 20 days, or, in the alternative, delivering the two Neuman bonds and the interest coupons to the clerk of the probate court and filing a cost bond in the sum of $250. Respondent elected to file, and filed within apt time, the cost bond and delivered the Neuman bonds and coupons to the clerk “the same to be held by said clerk to abide the final determination of said cause upon appeal to the circuit court.” On November 18, 1931, upon the cause being-called for a trial de novo in the circuit court, respondent moved that the petition of the administratrix and all proceeding’s thereon be dismissed for “want of jurisdiction” of the probate court. After arguments the circuit court granted the motion and entered ¿n order that the petition and proceedings be dismissed “at the cost of the petitioner, to be paid to the respondent, William Vinces, in due course of administration.” In the order the court found that the petition “does not state a cause of action cognizable by said probate.court, that said court was and is without jurisdiction in the premises to grant any relief upon said petition, and that the judgment and order upon said petition heretofore entered in the probate court is void for want of jurisdiction in said court.” From the order or judgment petitioner has appealed to this court.

The sole question for our determination is whether the circuit court erred in dismissing petitioner’s petition and all proceedings thereunder for want of jurisdiction in the probate court.

In the amended petition of Anna Spogis, administratrix, etc., as filed in the probate court, it is alleged in substance that in April, 1923, Magdaline Vinces, having received certain money, directed Peter Spogis, her son-in-law and the husband of Anna Spogis, to invest the sum of about $4,000 “in mortgages for her”; that during that month Spogis purchased for $4,046.67, “a first mortgage on the property of James and Ellen Montgomery, consisting of 3 notes of $250, $500 and $3,250, maturing respectively in February, 1926, 1927 and 1928” (hereinafter called the Montgomery mortgage); that' after the death of Mrs. Vinces, which occurred in April, 1926, the Montgomery mortgage was fully paid during February, 1928; that with the funds received by said payment Spogis, during February, 1928, purchased for the sum of $4,025.33, another mortgage on the property of Peter J. Neuman and wife (hereinafter called the Neuman mortgage); that thereafter William Vinces and Anna Spogis executed a written instrument and delivered the same to the Drovers Trust and Savings Bank of Chicago, by which instrument they agreed that the Neuman mortgage “should be held by them as joint tenants and not as tenants in common”; that thereafter, about January 3, 1930, William Vinces “attempted to cancel said joint tenancy agreement by a letter” addressed to said bank; that until about November 1, 1928, the Neuman bonds and mortgage were kept by Peter Spogis in his safety deposit box at said bank; that about November 1, 1928, William Vinces “expressed a desire to hold the Neuman mortgage”; that upon his request, “and without knowledge of his intention to convert or attempt to convert the same to his own use, and without knowledge of the rights of the heirs of Magdaline Vinces,” Peter Spogis transferred the custody of the Neuman bonds and mortgage to William Vinces; that those papers, “at the verbal direction of this (probate) court,” are now being held by the counsel of William Vinces pending the court’s decision herein; that the Neuman bonds and mortgage belong to the estate of Magdaline Vinces; that about January 22, 1924, and during her lifetime, Magdaline Vinces rented a safety deposit box and for a time there kept in her custody the Montgomery notes and mortgage; and that on August 14, 1924, she delivered those papers back to Peter Spogis to be deposited in his safety deposit box.

In the verified answer of William Vinces (respondent) to the petition, he alleged inter alia that Anna Spogis is his daughter; that of the children born to him and Magdaline Vinces there are now living four adult children, viz., Anna (wife of Peter Spogis), William, Jr., Joseph and Petronela; that after the purchase of the Montgomery notes and mortgage in April, 1923, Magdaline gave the papers to Peter Spogis “for safekeeping,” and Spogis kept them for her in his safety deposit box; that thereafter certain maturing-interest coupons were collected by Spogis and the proceeds paid to her; that early in 1924, William, Jr. and Joseph stated to respondent and his wife that it was not safe to leave the possession of the Montgomery papers in Spogis’ hands; that thereupon Magdaline demanded and received said papers from Spogis, and she put them in her safety deposit box in another bank; that thereafter respondent and Magdaline together went to live at the home of Peter and Anna. Spogis; that thereafter in 1926, Magdaline, while lying-in bed at said home in her last illness, “delivered said mortgage and notes and all other papers relating thereto to respondent”; that at that time she stated to respondent that she “realized she could not live” and that she “wanted respondent, her husband, to have her property”; that she then further stated: “Take this mortgage and keep it; you will need it; you are old and cannot work; the children . . . can make their living easier than you”; that thereupon respondent took the notes, mortgage and other papers and “placed them in his trunk,” where they were when Magdaline died about two weeks later; that shortly thereafter respondent gave said; papers to Peter Spogis “for safekeeping” for him; that whenever interest coupons became due Spogis was authorized to collect the proceeds, and did so, and was requested by respondent to put said proceeds in his (Spogis’) safety box, which Spogis promised to do; that when the notes and mortgage were fully paid in February, 1928, Spogis, at respondent’s request and acting as his agent, purchased the Neuman bonds and mortgage now in controversy, and the same “are now the sole property of respondent”; that respondent has no recollection of ever having executed any writing whereby he agreed that the two Neuman bonds should be the joint property of himself and Anna Spogis; that if his signature is upon any such paper it was procured by fraud; that after the death of Magdaline, respondent continued to live for several years at the home of Peter and Anna Spogis; that he frequently requested of Spogis an accounting of certain interest collected by him on the Montgomery notes and mortgage, which accounting was refused; that on one occasion, when respondent demanded such an accounting, Spogis stated that he did not owe respondent anything for interest money collected and “threatened to kill” respondent if any such further demands were made upon him; that Anna Spogis claimed at the time that all collected interest had been given to respondent but that he had forgotten about it; that about November 1, 1928, Spogis, at respondent’s request, delivered the two Neuman bonds and mortgage papers to respondent, and ordered respondent to immediately leave the Spogis home; that respondent did so and has ever since had possession of the two bonds and the mortgage papers; that about January 3, 1930, respondent was informed that Anna Spogis was going to take some proceedings “in the attempt to divest him of his title to said mortgage bonds” and that she “was claiming that he had executed some paper at the bank, ’whereby he had acknowledged that said bonds were the joint property of herself and respondent; that respondent immediately went to the bank and there signed a writing “disavowing any such joint ownership,” and instructed said bank to disregard any such claim on the part of Anna Spogis; that thereafter on January 9, 1930, Anna Spogis caused herself to be appointed administratrix of the estate of Magdaline Vinces, and thereafter in the probate court commenced the present proceeding. And respondent denied that the two Neuman bonds and the mortgage papers are the property of said estate, and alleged the fact to be that they are respondent’s sole property.

Sections 81 and 82, as amended in 1925, of chapter 3 of our statutes (Cahill’s St. 1931, p. 64, ¶¶ 82, 83) are as follows:

“ § 81. If any executor or administrator, or other person interested in any estate, shall state upon oath, to any county or probate court, that he believes that any person has in his possession or control, or has concealed, converted, or embezzled, any goods, chattels, moneys or effects, books of accounts, papers or any evidences of debt whatever, or titles to lands belonging to any deceased person, or the executor or administrator, or the estate of any deceased person. . . . the court shall require such person to appear before it by citation and may examine him on oath, and hear the testimony of such executor or administrator, and other evidence offered by either party, and make such order in the premises as the case may require. The court shall have power to hear, settle and adjudge all controverted questions of title and claims of adverse title and to determine the right of property. Such questions of title and, of rights of property, and such claims of adverse title shall be determined, upon the demand of either party, by a trial by jury.

§ 82. If such person refuses to answer such proper interrogatories as may be propounded to him, or refuses to deliver up such property or effects, or in case the same has been converted, the proceeds or value thereof, upon a requisition being made for that purpose by an order of the said court, such court may commit such person to jail until he shall comply with the order of the court therein, and if such order is for the delivery of such property or effects the court may enforce such order by execution against the real and personal property of the person thus ordered. With respect to property and effects concerning which there is raised a question of title, or of the right of property, or claim of adverse title, the court shall (upon trial by jury as provided in the preceding section, if such trial is demanded) enter a judgment according to the right of the matter and enforce the same by execution against the real and personal property of the person against whom such judgment is rendered, or the court may enforce its judgment and order in the premises by proceedings in contempt against any of the parties to said proceedings.”

The amendments to said sections, as made by the amendatory act of 1925, are above indicated by italics. (See Cahill’s St. 1923, p. 86.) In the opinion of Johnson v. Nelson, 341 Ill. 119, 122, the sections, as they existed prior to said amendatory act, are set out in full. In commenting upon their force and effect and upon decisions construing them, our Supreme Court said in the Johnson case (p. 122):

“These sections provided a summary method for the recovery of property of the character defined in section 81, which belonged to a decedent at the time of Ms death but had come into the possession of a third party prior thereto, and which that party either retained in his possession or had concealed or embezzled. (Dinsmoor v. Bressler, 164 Ill. 211.) In a case where the decedent’s ownership of the property in Ms lifetime was not disputed, the court might order the respondent, by the authority of sections 81 and 82, to deliver the property, or if he had converted it, the proceeds or value of the property, to the executor or administrator. If, however, the respondent claimed to be the owner of the property sought to be recovered, these sections could not be invoked against him, because he had the constitutional right to a jury trial for the determination of the question of the title to the property, and these sections made no provision for such a trial. Nor were these sections designed to afford the means of collecting a debt owing to the decedent at the time of his death. The title to the goods sold or the money lent, in such a case, had passed to the debtor or borrower, and sections 81 and 82 were not available to obtain satisfaction of the debt or claim. To accomplish that end the personal representative was compelled to institute, in a court of competent jurisdiction, a plenary action wherein the defendant had the right to a trial by jury. Martin v. Martin, 170 Ill. 18; Sullivan v. Arcola State BanJc, 314 id. 40.”

And in the Johnson case, after referring to said sections, as amended, the court further said (p. 123):

“The amendatory act made additions to both sections. The additions to section 81 by interpolation are: (1) The statement upon oath by which the proceeding is instituted may be made to the probate court as well as the county court; (2) the respondent’s possession or control, as distinguished from his possession merely, and his conversion as well as concealment or embezzlement of the property sought, may be the subject of inquiry, and (3) the property for the recovery of which the proceeding may be brought and the knowledge or information desired may concern property belonging not only to ‘any deceased person’ but also ‘to the executor or administrator or the estate of any deceased person.’ ”

And, after quoting the clauses added by the amendatory act to the sections respectively (as above indicated by italics), the court further said (pp. 124, 125): “The amendments to section 81 enlarged its provisions to include property belonging to ‘the executor or administrator or the estate of any deceased person’ and conferred upon the court the power to determine, upon a trial by jury if demanded by either party, questions of title and rights of property. Notwithstanding these additions, the purpose of the section as amended, apart from the recovery of books of account, papers or instruments of title, and the obtaining of information, is to recover possession of specific property, or, if converted, its proceeds or value. Section 81, as now in effect, contemplates that the testate or intestate, at the time of his death, held or at least claimed, and that the executor of his will or the administrator of his estate, since his death, either in succession or initially, holds or claims, the title to the property of which possession is sought.

“The power to determine questions of title and rights of property and to enforce by execution orders adjudicating titles or requiring the delivery of property, added to sections 81 and 82 by the amendatory act, does not include jurisdiction of the ordinary action for the recovery of money the title to which is in the debtor. Where the relation of debtor and creditor arises for money lent, the debtor owns the money and is indebted to the creditor for it, and consequently the debtor has no money belonging to the creditor, or to the latter’s estate, in his possession. To enforce collection of the indebtedness in such a case, by the rendition of a personal judgment against the debtor, was not within the scope of sections 81 and 82 prior to July 1, 1925, and no such power was conferred by the amendatory act, either expressly or by implication.”

In the more recent case of Hansen v. Swartz, 345 Ill. 609, wherein the construction of sections 81 and 82, as amended, was involved, it was decided inter alia that in a proceeding under the sections the trial in the circuit court is de novo, and that if either party demands a jury trial it should be allowed. In the course of the opinion the court said (p. 613):

“Sections 81 and 82 of the Administration act before their amendment in 1925 created a right of reaching property which had been placed by the deceased in his lifetime in the possession of the party charged, and the remedy did not extend to the' determination of a contested right or title to the property because no provision was made for the trial by jury, without which no man can be deprived, constitutionally, of his property. (Citing cases.) By the amendment (Laws of 1925, pp. 1, 2), the remedy was extended to property belonging to the ‘executor or administrator of the estate of any deceased person, ’ and power was conferred on the court to determine ‘ all controverted questions of title and claims of adverse title and to determine the right of property’ by a trial by jury upon the demand of either party. (Johnson v. Nelson, 341 Ill. 119.) This remedy is not, however, applicable to the collection of a debt. (Johnson v. Nelson, supra; Sullivan v. Arcola State Bank, 314 Ill. 40.) ”

After reviewing the pleadings in the present proceeding and sections 81 and 82, as amended, of the Administration Act, and considering the above holdings of our Supreme Court construing said sections, we are of the opinion that, on the cause coming on for trial de novo, the circuit court erred in dismissing petitioner’s petition and all proceedings thereunder for want of jurisdiction in the probate court. It appears from the petition of Mrs. Spogis, as administratrix of Mrs. Vinces’ estate, and from respondent’s answer thereto, that the controversy concerned the title or ownership of certain specific property, viz., two bonds and a mortgage securing them; that petitioner claimed that the property belonged to said estate; and that respondent on the contrary claimed he was the owner thereof. It further appears that on this issue of fact there was a trial before a jury in the probate court, resulting in a verdict in favor of petitioner, upon which verdict the court entered judgment and ordered that respondent deliver the property to petitioner, as administratrix; that respondent took proper steps to have the issue tried de novo before the circuit court; and that the circuit court found that the petition “does not state a cause of action cognizable by the probate court” and that the probate court “was and is without jurisdiction to grant any relief upon the petition,” and, accordingly, entered the order or judgment now in question. In said section 81, as amended, it is provided in part that the probate court “shall have power to hear, settle and adjudge all controverted questions of title and claims of adverse title and to determine the right of property.” And it, is also provided in the section that all such questions and claims “shall be determined, upon the demand of either party, by a trial by jury.” We think that the pleadings in the present case disclose such a case as by said section, as amended, the probate court is given power to hear, settle and determine. And we do not think that the decision in the above referred to Johnson case (341 Ill. 119, 125) is in anywise contrary to this view, as is here urged by respondent’s counsel. In the Johnson case, as in said Hansen case (345 Ill. 609, 613), it was held that the remedy given by the amended statute is not applicable to the collection of a debt. In the present proceeding the petitioner, as administratrix, does not seek to collect a debt due to the estate, but does seek to obtain possession of certain specific property, alleged to belong to the estate.

The order or judgment of the circuit court of November 18, 1931, appealed from is reversed, and the cause is remanded to the circuit court for a trial de novo upon the petition and answer. If either party-demands a jury trial it should be allowed.

Reversed and remanded.

Keener, P. J., and Scandan, J., concur.


text:
    Joseph R. Von Kesler, Appellant, Freeman Boiler & Engineering Company, Intervenor, v. Daniel B. Scully, Jr. and Foreman-State Trust and Savings Bank, Appellees.
    Gen. No. 35,795.

      Opinion filed October 4, 1932.
    Rehearing denied October 15, 1932.
    Bangs, Crane & Slater, for appellant; Martin Crane and Robert J. Bjjrdett, of counsel.
    Dickinson, Smith, Farrell & Wham, for appellees; Thomas E. D. Bradley and Edward J. Farrell, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

On August 14, 1931, complainant, a judgment creditor of the defendant, Daniel B. Scully, Jr., in the sum of $1,503.10, filed a creditor’s bill against both defendants in the circuit court of Cook county, in his own behalf and in behalf of such other judgment creditors of Scully, Jr., as might intervene in the proceeding and contribute to the expense thereof. On August 25,1931, the Freeman Boiler & Engineering Co., a corporation, also a judgment creditor of Scully, Jr., in the amount of $1,329.09, was given leave to file and filed its intervening petition as a party complainant. During October, 1931, each defendant filed a general demurrer to complainant’s bill, and on November 20, 1931, after argument had, the court sustained the demurrers, and, complainant electing to stand by his bill, dismissed it for want of equity. Complainant alone prosecutes the present appeal.

In the bill complainant alleged his recovery of a judgment against Scully, Jr., for $1,503.10, in June, 1930, in the municipal court of Chicago, the issuance of an execution thereon and the return of the execution unsatisfied, etc. He further alleged that at the time of the entry of the judgment Scully, Jr., was, and from thence hitherto has been, “the owner of a vested remainder in, or in some manner beneficially interested in, the estate of Daniel B. Scully, deceased, father of said defendant, and in the trust fund created by the last will of Scully, • Sr., and in the property therein contained”; that Scully, Sr., died on August 8, 1922; and that his will was admitted to probate in the probate court of Cook county on September 8,1922. (Copy of will attached and made a part of the bill.)

It is further alleged that by the will the testator, after the bequest of certain specific legacies, “devised and bequeathed all of the rest, residue and remainder of his property to the State Bank of Chicago, in trust, upon certain uses and conditions”; that by the will it is provided that, at the expiration of 15 years from the date of the death of the testator, if Josie V. Scully (his wife) be then living, the trustee shall retain and hold out of and from said trust estate sufficient to provide a net income therefrom of $25,000 a year, during the life of said wife, which said net income shall be paid to her in monthly payments during her lifetime; that the balance of said original trust estate shall, at the expiration of 15 years from the date of the death of the testator, “be distributed” to cértain of the testator’s children therein named; that Scully, Jr., defendant herein, is thereby bequeathed one-seventh (l/7th) of said balance; that in the event of the death of Josie V. Scully before the expiration of 15 years from the date of the death of the testator, said trustee shall thereafter “pay and distribute” the entire net income from said trust estate to the children of the testator therein named, and in the proportions therein stated, and at the expiration of said 15-year period the entire trust estate of' the testator shall be disbursed by the trustee to the children of the testator therein named, and in the proportions therein specified; that Scully, Jr., thereby is Bequeathed one-seventh (l/7th) of the whole of the trust estate; that in the event of the death of Josie V. Scully after the expiration of said 15-year period from and after the date of the death of the testator, then said trustee shall dispose of that part of the trust estate, held by the trustee for the purpose of paying and distributing to her an annual net income of $25,000, to the children of the testator named in the will, and in the proportions therein specified; and that Scully, Jr., is therein and thereby bequeathed one-seventh (l/7th) of said portion of the trust fund.

It is further alleged that Josie Y. Scully, widow of the testator, is now living; that the income from the trust fund greatly exceeds the sum of $25,000 per annum, to wit, $100,000; that Scully, Jr., has heretofore been married and has issue who are now living; that said State Bank of Chicago, an Illinois banking corporation, named in the will as trustee of said trust fund, accepted the appointment and qualified as such, and took possession and assumed control of all the rest, residue and remainder of said estate and property, in accordance with the terms of said will; that said residue and remainder, so held in trust, is now of a market value in excess of $2,000,000; that the interest of Scully, Jr., therein is of ample value to pay complainant’s said judgment and the judgments of such other judgment creditors as may join herein as parties; and that said State Bank has, since taking possession of the trust property, consolidated with the Foreman-State Trust & Savings Bank, an Illinois banking corporation, which last named corporation is now the duly qualified and acting trustee of said trust fund.

The prayer of the bill is, inter alia, that Scully, Jr., may be decreed to pay the amount due on complainant’s judgment, and also the respective amounts due on judgments of the intervening petitioners who may join herein; that Scully, Jr., “may be decreed to apply for that purpose any money or property, real or personal, in law or equity, debts, choses in action, or equitable interests belonging to him, or held in trust for him, or in which he is in any manner beneficially interested, including said vested remainder in said trust fund’ ’; that in default of such payment, the ‘‘ said undivided one-seventh (l/7th) interest in the remainder” of said Scully, Jr., in the trust fund created by said will of Scully, Sr., “together with all his right, title and interest” in and to the property thereof, “be sold, as may be directed by the court,” to satisfy the amount due to complainant and also to those who may have joined herein, etc.; that in case of such sale defondants, and all persons claiming through, or under them subsequent to the commencement of this suit, may be forever barred and foreclosed of all right and equity of redemption in. said interest of said Scully, Jr., so sold; and that the defendant bank may be ordered by decree of this court to pay over and deliver to the purchaser at said sale, or those claiming through and under said purchaser but otherwise in accordance with the terms of said will, “the interest of said Scully, Jr., in said trust fund, and in the property thereof, and of said undivided one-seventh (l/7th) interest in the remainder therein.” The bill also prayed for an injunction and for general relief.

The will, in addition to what is set forth in the bill, provides in paragraph eleventh (11th) that, in the event of the death of any of the testator’s children leaving issue, “such issue shall take the parent’s share per stirpes and not per capitaand that in the event of the death of any of the testator’s said children leaving no issue him or her surviving, then “his or her share of my estate shall be divided among my then surviving children and the issue, if any, of any of my said children who shall have theretofore departed this life, if any, per stirpes and not per capita, but the distribution of income and principal shall be made at the times and in the manner herein provided.” The fourteenth (14th) paragraph of the will is what may be termed a “spendthrift clause” and is as follows:

“I expressly direct that my said trustee shall pay all such income into the hands of each beneficiary, or if such beneficiary shall not have attained his or her majority, then to the duly constituted guardian of such minor beneficiary, and not upon any written or verbal order, nor upon any assignment or transfer by any such beneficiary; that no beneficiary herein shall have the right to sell, alien, pledge or assign his or her interest in said trust estate, or any part thereof, and no person shall acquire any right, title or interest of any beneficiary in said trust estate by reason of any sale, assignment, transfer, claim or judgment against such beneficiary, whether voluntary or involuntary.”

In section 49 of our Chancery Act (Cahill’s St. 1931, ch. 22, ¶ 49, p. 244) it is provided:

“Whenever an execution shall have been is'sued against the property of a defendant, on a judgment at law or in equity, and shall have been returned unsatisfied, in whole or in part, the party suing out such execution may file a bill in chancery against such defendant, and any other person, to compel the discovery of any property or thing in action, belonging to the defendant, and of any property, money, or thing in action due to him, or held in trust for him, and to prevent the transfer of any such property, money or thing in action, or the payment or delivery thereof to the defendant, except when such trust has, in good faith, been created by, or the fund so held in trust has proceeded from, some person other than the defendant himself. The court shall have power to compel such discovery, and to prevent such transfer, payment or delivery, and to decree satisfaction of the sum remaining due on such judgments, out of any personal property, money or things in action, belonging to the defendant, or held in trust for him, with the exception above stated, which shall be discovered by the proceedings in chancery, whether the same were originally liable to be taken in execution at law or not; . . . ”

In urging that the court erred in sustaining the demurrers to complainant’s bill and in dismissing the bill, complainant’s counsel here contend in substance (1) that the interest of Scully, Jr. (the judgment debtor) under the terms of his father’s will is “an equitable, vested remainder — the legal title being vested in the trustee” (defendant bank); (2) that such interest of Scully, Jr. may now be reached by a creditor’s bill; and (3) that neither the exception contained in section 49 of the Chancery Act nor the spendthrift clause in the father’s will (paragraph 14th) “is a bar to complainant’s subjecting this interest to the payment of his judgment.” Defendants’ counsel on the contrary contend in substance (1) that the interest of Scully, Jr., under the will is not a vested remainder; and (2) that even if said interest be considered as a vested remainder it cannot be reached now by a creditor’s bill because (a) the provisions of the spendthrift clause of the will (paragraph 14th) are not void, under the Illinois decisions, as in restraint of alienation, and (b) the spendthrift trust created by the will is valid both as to the income and as to the corpus of the estate. In the reply brief of complainant’s counsel, in discussing said spendthrift clause, they say:

“At the outset, the validity of the spendthrift provision here in question, insofar as it protects the income of the trust fund, may well be admitted. It is, however, vigorously contested that the benefit of that spendthrift clause extends to the vested, equitable remainder given the defendant Scully, Jr. It follows that, if the income is protected, the corpus may not be disturbed, nor the trust disrupted during its existence, by an action such as that brought here. The vested, equitable remainder, however, is not the corpus, but an interest in the corpus, which can be reached at this time, and in this manner, and sold to satisfy the judgment against said defendant, without disturbing the trust.”

As to complainant’s counsels’ first contention we are of the opinion that the interest of Scully, Jr., under the will is to be considered as a vested and not as a contingent remainder. (Scofield v. Olcott, 120 Ill. 362, 373; Knight v. Pottgieser, 176 Ill. 368, 374; Pearson v. Hanson, 230 Ill. 610, 616; Nicol v. Morton, 332 Ill. 533, 540-1.)

But we are. of the opinion, because of said spendthrift clause, that the interest of Scully, Jr., under the will cannot be reached by the present creditor’s bill and that the spendthrift trust created, by the will is valid both as to the income and as to the corpus of the estate. And we are unable to see how Scully, Jr.’s vested remainder interest in the corpus of the estate, while in the hands of the trustee, can be sold to satisfy complainant’s judgment without disturbing the trust, as is contended by complainant’s counsel. The term “spendthrift trust,’’ as said in 26 Am. & Eng. Ency. Law, 2d Ed., p. 138, “is the term commonly applied to those trusts that are created with a view of providing a fund for the maintenance of another, and at the same time securing it against his own improvidence or" incapacity for self-protection. The provisions against alienation of the trust fund by the voluntary act of the beneficiary, or in invitum by his creditors, are the usual incidents of such trusts.” Such trusts have frequently been recognized by the decisions of our Supreme Court as constituting exceptions to the rule against restrictions on the alienation of vested estates. In one of the earlier cases, Steib v. Whitehead, 111 Ill. 247, it is said (pp. 250, 251, 252):

“That it was the intention of the testator to place the net income of the property beyond the control of his daughter and her creditors while in the hands of the trustee, is manifest, and we perceive no good reason, nor has any been suggested, why this intention should not be given effect. We fully recognize the general proposition that one cannot make an absolute gift or other disposition of property, particularly an estate in fee, and yet at the same time impose such restrictions and limitations upon its use and enjoyment as to defeat the object of the gift itself, for that would be, in effect, to give and not to give, in the same breath. For do we at all question the general principle that upon the absolute transfer of an estate, the grantor cannot, by any restrictions or limitations contained in the instrument of transfer, defeat or annul the legal consequences which the law annexes to the estate thus transferred. . . . But while this unquestionably is true, it does not necessarily follow that a father may not, by will or otherwise, make such reasonable disposition of his property, when not required to meet any duty or obligation of his own, as will effectually secure to his child a competent support for life, and the most appropriate, if not the only, way of accomplishing such an object is through the medium of a trust. Tet a trust, however carefully guarded otherwise, would in many cases fall far short of the object of its creation, if the father, in such case, has no power to provide against the schemes of designing persons, as well as the improvidence of the child itself. If the beneficiary may anticipate the income, or absolutely sell or otherwise dispose of the equitable interest, it is evident the whole object of the settlor is liable to be defeated. . . .

“The creditors of the daughter have no ground to complain that they have been misled or wronged in consequence of the provision made for her by her father. It was his own bounty, and so far as they are concerned he had the right to dispose of it as he pleased. The property was not placed in her possession so that she might appear as owner when she was not, and thereby obtain credit. An examination of the public records would have shown that she had no power to sell or assign her equitable interest, — that the extent of her right was to receive the net accumulations of the trust estate from the hands of the trustee, and that these accumulations did not become absolutely hers, so as to render them subject to legal process for her debts, until actually paid to her. ’ ’

In Hopkinson v. Swaim, 284 Ill. 11, it is said (p. 22): “Trusts whereby the income from property, real or personal, may be required to be paid to a beneficiary but shall be beyond his control and beyond the reach of his creditors while in the hands of the trustee may be created and will be sustained by the courts.” (Citing the Steib case, supra; Wagner v. Wagner, 244 Ill. 101; Broadway Nat. Bank v. Adams, 133 Mass. 170; Nichols v. Eaton, 91 U. S. 716.) And it is further said (pp. 25, 26):

“It is argued that the attempted restraint on alienation is void because the children of William Swaim took a vested legal estate in fee under the will of James Swaim and the entire legal interest under the supposed trust for their lives, and that James Swaim, having devised the property in fee to his grandchildren, was powerless to impose any restraint on its alienation. It is true that as a general rule any limitation restraining an owner in fee simple from selling his land is bad, but it is said in Johnson v. Preston, 226 Ill. 447 (462), which is cited by the appellant’s counsel, that there is an apparent .exception to this rule where what is known as a spendthrift trust is created. The devise in that case was stated to bear no resemblance to a spendthrift trust, and it was therefore not decided there whether cases of that character were an exception to the general rule. In this case, however, active duties were imposed upon the trustees and the trust is a spendthrift trust. We have already seen that such trusts will be sustained and the restriction on alienation enforced during the life of a devisee for life. There is no reason for such a rule in the case of a life estate which does not apply equally to a fee during the life of the owner.” (The court then quotes from the opinion in Nichols v. Eaton, 91 U. S. 716, at page 727.)

And we think that the contention of defendants’ counsel (viz., that such a spendthrift trust as is disclosed in the present bill is valid both as to the income and as to the corpus of the estate) is also sustained by the holdings and decisions in the following cases: Bennett v. Bennett, 217 Ill. 434, 442, 444; Wallace v. Foxwell, 250 Ill. 616, 627, 629; Congress Hotel Co. v. Martin, 312 Ill. 318, 321, 322.

And we are also of the opinion that, because of the exception contained in section 49 of. our Chancery Act, Cahill’s St. ch. 22, ¶ 49, complainant’s creditor’s bill in the present case will not lie to reach any part of the trust fund or estate, as created by the will of Scully, Sr., so long as the same remains in the hands of the trustee, the defendant bank. (Binns v. LaForge, 191 Ill. 598, 607, 608.)

Our conclusion is that the circuit court did not err in sustaining the several general demurrers of defendants to complainant’s bill. Accordingly, the decree appealed from, dismissing the bill for want of equity, is affirmed.

Affirmed.

Keener, P. J., and Scanlan, J., concur.


text:
    Ida G. Hogg, Individually and as Administratrix of the Estate of Lloyd W. Hogg, Deceased, Appellant, v. Robert Eckhardt et al., Appellees.
    Gen. No. 35,804.

      Opinion filed October 4, 1932.
    Albert Fink and Francis M. Lowes, for appellant; Herbert Haase, Henry L. Hanley, Hubert E. Howard, E. Bentley Hamilton, Henry N. Shabsin and George N. B. Lowes, of counsel.
    Cooke, Sullivan & Ricks and George II. Mason, for certain appellee; George A. Cooke and Edward H. Fiedler, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

This is an appeal from an order of the superior court of Cook county, entered October 30, 1931, denying complainant’s motion, supported by her sworn petition and certain affidavits and exhibits, for leave to file a bill of review on the ground of newly discovered evidence to review a final decree of the court, entered March 26, 1931, in accordance with the final decision and mandate of the Supreme Court. (Hogg v. Eckhardt, 343 Ill. 246.)

The litigation has been pending for more than 10 years. On August 4, 1921, Lloyd W. Hogg died intestate. On August 30, 1921, complainant (his widow), individually and as administratrix of his estate, and George W. Hogg, a son (who subsequently died), filed their verified bill against Robert Eckhardt for the recovery of certain shares of stock alleged to have been owned by Lloyd W. Hogg in his lifetime, and also alleged to have been assigned and transferred by him to Eckhardt on or about April 6, 1921, without any consideration and at a time when Hogg was mentally incompetent or when a fiduciary relation existed between him and Eckhardt. Subsequently an amended verified bill was filed, and, after Eckhardt and the corporations which had issued the stock had filed their answers, the cause was referred to a master in chancery before whom a mass of oral and documentary evidence was introduced. The stocks sought to be recovered consist of 1320 shares of the Union Carbide and Carbon Corporation; 2486 shares of the Sinclair Consolidated Oil Corporation; 593 shares of the American Steel Foundries; 100 shares of the Stewart-Warner Corporation; and 63 shares of the Middle West Utilities Company. In Eckhardt’s answer he denied that Hogg ever owned the stocks or that Hogg had assigned and transferred them to him on April 6, 1921, or at any time when Hogg was incompetent, and alleged that he (Eckhardt) was “at all times” the owner of the stock. He further alleged that long prior to April 6, 1921, Hogg assigned all of the shares and delivered them to him. He further denied that Hogg was mentally incompetent or that a fiduciary relation existed between Hogg and him, but admitted that they had been very warm and close friends for many years. He further denied that the assignments of the stocks by Hogg to him were without consideration or that complainant or Hogg’s heirs were entitled to any of the stocks. On January 10, 1927, the master made a lengthy report (filed April 19, 1927), recommending that complainant’s bills be dismissed for want of equity. After all the evidence had been taken and after the master’s report had been filed, complainant filed an amendment to the 6th paragraph of her bill, to which amended paragraph Eckhardt filed an answer. On the hearing before the chancellor exceptions to the master’s report were sustained in part and overruled in part, and, on July 14, 1927, a decree was entered finding that Eckhardt was the owner of the Carbide stock, but that complainant was entitled to all the other stocks in controversy. Thereafter both parties per-footed appeals to the Appellate Court, and on June 19, 1928, this division of the court, for reasons stated in its opinion, reversed the decree of the superior court “so far as it awards to Eckhardt the Carbide stock and requires complainant to pay a portion of the costs,” and adjudged that in other respects the decree be affirmed and that the cause be remanded to the superior court “for entry of a decree in conformity with this opinion.” (Hogg v. Eckhardt, 249 Ill. App. 346, 367.) Subsequently, on certificate of importance being granted, appeals were perfected in the Supreme Court, and on February 18, 1931, the Supreme Court rendered its final decision wherein it was adjudged that “the judgment of the Appellate Court is reversed and the decree of the superior court of Cook county is affirmed in part and reversed in part and the cause is remanded to the superior court, with directions to enter a decree awarding all the stock in controversy to appellant (Eckhardt), except the 100 shares of Stewart-Warner stock, which will be awarded to appellee.” (343 Ill. 246, 268, 269.) On March 26, 1931, the final decree of the superior court, in accordance with said decision and the mandate of the Supreme Court, was entered.

In complainant’s petition, sworn to on June 25,1931, and presented to the court on July' 11, 1931, for leave to file her bill of review, after outlining the prior proceedings, she alleges that since the rendition of the first decree of the superior court of July 14,1927, “and shortly after October 30, 1930,” she discovered “new matters of consequence” in the cause. Then follow numerous paragraphs stating in detail the claimed newly discovered evidence. The substance of the petition is that through the efforts of one Nathanial Hawkins, an accountant, and others, an old bank account of Hogg with the Union Trust Company (a Chicago Bank) from October 11, 1909, down to September 5, 1918, and contained in so-called “Boston ledgers” of the bank, had been discovered, and that with the aid of the account she would now be able to prove, if given the opportunity, that Hogg had himself paid for some of the stocks in controversy (i. e., the Carbide stock) long before the issuance of the so-called “Grasmere” checks (mentioned in the final decision of the Supreme Court as the likely medium through which Eckhardt had paid Hogg for the stocks) — thus controverting Eckhardt’s claim, as pleaded in his answer, that he was “at all times” the owner of the stocks. The petition alleges that said ledgers “extend to and no further than September 5, 1918”; that all deposit slips, showing the deposits in all accounts in the bank including the account of Hogg prior to June, 1919, have been destroyed; and that “there are no records whatsoever in the bank by which the account of Hogg with the bank, for the period from September 5, 1918, to the closing out of said account on July 21, 1920, may be reconstructed or determined.” The petition further alleges:

13. That petitioner did not know, “and could not by reasonable diligence have known, ’ ’ of said new matters, “so as to make use thereof in said cause previous to and at the time of said hearings before the master and chancellor and at the date of the original decree herein” (July 14, 1927); that she first learned thereof from Nathanial Hawkins “at the time aforesaid” (after October 30, 1930); that shortly after Hogg’s death she requested of Eckhardt, “who had been in a fiduciary capacity to Hogg from at least September 23, 1920, to and until the death of Hogg on August 4,1921, and who during said period was thoroughly acquainted with the business affairs and dealings of Hogg,” information regarding Hogg’s business affairs, and particularly regarding said shares of stock; that Eckhardt neglected and refused to furnish such information; that petitioner’s solicitors advised her that after thorough inquiry they had been unable to obtain evidence as to where Hogg had obtained the money which went to purchase the stocks mentioned in her amended bill and that they had learned from employees of the Union Trust Company that the records of Hogg’s account with that bank, for the period prior to July 22, 1920, had been lost and were not available; that she caused J. C. L. Haas and Clarence T. Anderson, employees of the bank, to testify before the master, and that they testified that after a careful search the records could not be found; that she “has never been satisfied” with the explanations that said records had been lost; that she “continuously requested her solicitors and her accountant to find out what had become of said bank account and of the $40,000 worth of Liberty Bonds that Hogg reported that he owned in his income tax returns prior to his death”; that “about a year and a half ago” (i. e., about December, 1929) petitioner learned that the bank had moved its quarters; that she “then requested said Hawkins to make further inquiry to ascertain if during the removal the bank account had been found or if any records had been found having to do with said bonds”; that “at the same time” she also requested Hawkins to inquire of all the large brokerage concerns in Chicago where Hogg had purchased the bonds or sold them; that Hawkins reported from time to time that he was making investigations; and that about October 1, 1930, he informed petitioner that he had learned of said loans made to Hogg by the bank, and later informed her that he “had learned of other matters and things indicating that Hogg had purchased and paid for the stocks aforesaid.”

14. That "said new evidence discovered is of vital importance, and no decree would have been entered in the cause against petitioner had said evidence been available and introduced in her behalf”; that the final decision and opinion of the Supreme Court, and the decree of the superior court entered in March, 1931, pursuant to the direction of the Supreme Court, “were premised upon the finding that there was no evidence that Hogg had purchased said stock with his own money, and that, as alleged in Eekhardt’s answer to the amended bill, said stock was all purchased by Hogg for the use and benefit of Eekhardt, and Eekhardt paid to Hogg the purchase price of each and every share of stock so purchased”; that the foregoing new evidence “proves that Hogg purchased and paid for said shares of stock from and out of moneys belonging to him, and not from or out of moneys furnished to him by Eekhardt to purchase the same”; that during the hearing of the cause before the master, Eekhardt offered to prove that he had previously bought stock through Hogg, that stocks “took a great drop,” that Mrs. Eekhardt raised objections as to Eekhardt purchasing stocks, that “arrangements were made” between Eekhardt and Hogg that thereafter stocks purchased by Eekhardt should be issued in Hogg’s name, and that pursuant to said arrangements the stocks in controversy were purchased for Eekhardt in Hogg’s name; that the final opinion of the Supreme Court, and the final decree of the superior court of March 26, 1931, “are based upon the premise that the substance of Eekhardt’s said offer was sustained in the record of this cause by the so-called Grasmere Hotel checks, .the first of which was issued February 12,1916, in the sum of $919.94, and the second of which was issued April 27, 1917, in the sum of $657.37”; that the newly discovered evidence “proves that said Carbide stock was acquired by Hogg as early as 1913, more than two years prior to the issuance of said first so-called Grasmere check, and almost four years prior to the issuance of said second so-called Grasmere check”; and that the newly discovered evidence “could not possibly be presented to, or relief thereon granted by, any court until the entry herein of the decree of March 26, 1931, in accordance with the mandate of the Supreme Court. ’ ’

The prayer of the amended petition is that “leave be granted petitioner to file herein her bill of review for the purpose of having said decree reviewed, reversed and set aside,” etc. Accompanying the petition are affidavits of Nathanial Hawkins, the accountant ; Francis M. Lowes, one of the solicitors for, complainant; Herbert Haase, Henry L. Hanley and Herbert E. Howard, other solicitors for complainant; and J. J. Buechner, auditor of the Union Trust Company. These affidavits tend to support some of the allegations of the petition.

The following are some of the statements or holdings of the Supreme Court in its final decision, as reported in Hogg. v. Eckhardt, 343 Ill. 246: After stating in substance the allegations as contained in complainant’s original bill and amended bill, and in the answer of Eekhardt thereto, it is said (p. 249):

“It was upon these pleadings that all the evidence was introduced before the master. The verified bills expressly asserted and relied upon an actual assignment and delivery of the stocks by Hogg to appellant (Eekhardt) but sought to set them aside on the ground of lack of consideration for the transfers and because of the alleged mental incompetency of the deceased and the existence of a fiduciary relation.”

After commenting upon the effect of the amendment to the 6th paragraph of the amended bill it is said (p. 250):

‘ ‘ On the issues made by the pleadings, therefore, the sole question in this case is whether Hogg’s transfers to appellant were made at a time when he was mentally incompetent or when a fiduciary relation existed, and without consideration.”

After outlining certain facts and particularly the various times when the stocks in controversy were issued, it is said (pp. 251, 252):

“The stocks were purchased in comparatively small lots from time to time, the transactions being more than fifty in number over the three-year period (i. e. from 1917 to 1920). All the shares were issued in the name of Lloyd W. Hogg, and they are all endorsed by him on the form of assignment on the back of the certificates.”

In discussing the question of Hogg’s mental incompétency it is said (pp. 252, 253):

“Many witnesses, both lay and medical, testified as to Hogg’s mental and physical condition. After a careful consideration of this evidence we are of the opinion that there were only four occasions between February 1, 1921, and the date of Hogg’s death (August 4, 1921) when he was incompetent to understand and transact ordinary business, namely, a day or so after February 4, . . .; a day or so after March 15, . . .; a period of a week to ten days after the decompression operation of March 31 was performed, and at other times between March 11 and April 7,1921, when he had been given morphine and codein.”

“It is stipulated by the parties that Hogg signed his name on the back of each certificate of stock here in question at about the date of its issuance, and that by the date of issuance is meant the date which the certificates of stock, respectively, bear upon their face. These certificates of stock were all issued at times when it was shown by the evidence that Hogg.was not incompetent to understand and transact ordinary business. The law has been generally established that as between the parties the transfer of stock by delivery of the certificate, with power of attorney or endorsed in blank, passes title without the transfer on the books of the company. . . . Although these transfers on the books of the corporations occurred in April, 1921, the record shows that the certificates had been assigned and delivered to appellant long prior thereto and at a time when Hogg was mentally competent. Hogg’s incompetency at the time of the transfers on the corporation books was entirely immaterial, as it is the settled rule that the fact a former owner is insane, or even dead, at the time of such transfers has no effect on the validity of the transfers. . . . This •disposes of the question of Hogg’s incompetency.”

The court then enters upon a discussion concerning the ownership of the stocks and the question of their transfer by Hogg to Eckhardt at times when a fiduciary relationship existed, saying in part (pp. 253-255):

“Possession of stock certificates endorsed in blank is prima facie evidence of ownership in the possessor, and the burden of producing evidence on the question of ownership rests upon the person disputing such ownership. . . . This burden may, however, be shifted to the possessor by proof that he obtained such possession from the prior owner at a time when a fiduciary relation existed between him and the prior owner. . . . The decree finds that a fiduciary relation existed between them from September 23, 1920, until Hogg’s death on August 4, 1921. From the evidence in this record the chancellor properly limited the commencement and duration of the alleged fiduciary relation to that period, as there is no evidence which would justify a finding that any such relation existed prior to September 23, 1920. The effect of the existence of such a relation is to raise a presumption that transactions between the parties • during its existence are fraudulent and void and to cast upon the one benefiting from such transactions the burden of proving they were entirely fair and not the result of fraud or undue influence. But, obviously, the existence of such a relation at a given time has no effect upon transactions between the parties which occurred prior to the commencement of the relation. . . . Where a complainant alleges that a transaction is invalid by reason of a fiduciary relation and on that basis seeks to recover property in the possession of the defendant, relief is predicated upon the doctrine of constructive trusts, and when awarded it is on the theory that the defendant holds title as trustee for the grantor, . . . ; and in such cases it is incumbent upon the complainant to establish the claim of fiduciary relation and constructive trust by proof which is ‘clear and convincing, and so strong, unequivocal and unmistakable as to lead to but one conclusion.’ ... It was therefore incumbent upon appellee (complainant) to establish by clear proof not only the existence and period of the fiduciary relation but also that the assignments of the stocks by Hogg to appellant occurred at a time when the relation existed. A careful study of the record on this subject convinces us that the evidence shows beyond doubt that except for a few shares of stock which were issued as stock dividends or pursuant to ‘rights’ on stocks previously issued, all the stocks in question were assigned and delivered by Hogg to appellant prior to September 23, 1920, except the Stewart-Warner stock. For this reason there can be no presumption that the transactions prior to September 23, 1920, were invalid, and the burden of proof was not upon appellant to show that the assignments prior to that date were fair and not the result of undue influence. ’ ’

After reviewing the testimony of Eekhardt’s witnesses, Draper and Warren, the court further says (pp. 258, 259, italics ours):

“There is no evidence in this record establishing that Hogg’s funds were used to purchase the stocks. Although his income during the years in question was very large, amounting to several hundred thousand dollars, the record shows that he disposed of the great bulk of it in other directions. The fact thát the stocks were in each instance issued in Hogg’s name would raise a presumption that they were his since legal title was vested in him, but such a presumption is overcome by the undisputed and agreed fact that he assigned each certificate immediately upon its issuance in his name and that appellant was in possession of the certificates while they were in that condition. There is - no evidence as to the cost of the stocks, and it is impossible to determine from the record the purchase price paid for the stocks over the four-year period from 1917 to 1921. Appellant introduced in evidence approximately fifty checks, totaling $56,905.51. They range in date from 1917 to 1920, the latest being dated December 20, 1920. These checks were drawn on two Chicago banks — Sheridan Trust and Savings Bank and Union Trust Company. They were all made payable to the order of appellant and were signed, ‘Hotel Grasmere, by Robert Eekhardt.’ Appellant was the owner of this hotel. Each check bore the endorsement of appellant and of the bank which cashed it. The checks were issued for varying amounts at different dates — in most cases one a month but sometimes two. The paying tellers of the Union Trust Company and the Corn Exchange National Bank, who had cashed all these checks, were called as witnesses. Hogg had an account in both banks and the paying tellers were well acquainted with him. They identified each check by the paying teller’s stamp which he had placed upon it, and testified that they had cashed all the checks for Hogg without requiring him to endorse them. . . . The testimony of these bankers is convincing. It shows that "without doubt Hogg received the proceeds of these checks, totaling about $57,000, during the period when the stocks in question were purchased. In several instances the record shows that on the same days Hogg cashed these checks he deposited approximately the same or a greater amount in his checking account in one or the other of these banks. Hogg’s bank account on the books of one of these banks has disappeared, and there is therefore no showing that the proceeds of all these checks were so deposited. The master found that Hogg cashed all the checks and 'received the proceeds thereof.’ ”

After considering the evidence regarding the final disposition of dividends received on the stocks, and after commenting seriatim upon the evidence concerning each of the stock issues, the court further says (p. 263):

"There were twenty-seven occasions when Hogg endorsed the stock certificates over a period of three years. The stock certificates themselves show that the endorsements occurred in appellant’s presence on each of these numerous occasions. As to some of the certificates the evidence is that they were delivered by Hogg to appellant at the time when they were endorsed. As to the others, with the exception of the Stewart-Warner stock and some of the stock which was issued as dividends, while the record does not expressly show the dates of delivery it does show that they must have been delivered to appellant prior to July, 1920, for they were in his possession as early as that date. Appellee thus in the main failed to prove that the transactions occurred during the period of alleged fiduciary relation. On the contrary, the proof shows the transactions occurred at a time when clearly no such relation existed. We are of the opinion that the facts and circumstances established by this record show that appellant was the owner of all the stocks in controversy except the Stewart-Warner stock. The fact that Hogg assigned all these stock certificates at the times they were issued, or soon thereafter, is in itself a strong circumstance indicating that he was not the owner, when the evidence shows that he did not follow this practice as to any stocks which were admittedly his own property.”

And the court further says (pp. 264, 265, italics ours):

“After the record transfers of all the stocks to appellant’s name the dividend checks were issued direct to appellant instead of Hogg, and although these amounted to a considerable sum prior to Hogg’s death, there is nothing in the record to indicate that Hogg did not fully acquiesce in both the record transfers and the receipt of the dividends by appellant. Appellant made payments to Hogg by checks totaling about $57,000, and although there was no evidence directly establishing that these payments were made for the purpose of having Hogg purchase the stock for appellant, the only reasonable conclusion is that they were for that purpose. The master expressly found that ‘the receipt by Hogg of these large amounts has not been explained or accounted for in any way,’ and that appellant’s testimony was ‘not admissible to explain them or. to show other payments, if any, which may have been made by him.’ Many other circumstances disclosed by the record also tend to show that appellant was the owner of the stock, but it is unnecessary to consider them.”

Concerning Hogg’s income tax return for the year 1920, prepared by appellant, the court further says (pp. 266, 267, italics ours):

“Another circumstance relied upon by appellee relates to Hogg’s income tax return for the year 1920. This return was prepared for Hogg by appellant April 14, 1921, after Hogg had left the hospital. Included in the return were dividends received by Hogg during 1920 on the stocks in question, and it is argued that this establishes that Hogg owned the stocks in his own right. There would be force in this contention in the absence of the other evidence we have alluded to, but in view of the uncontradicted evidence as to Hogg’s practice in cashing the dividend checks rather than depositing them, and the - uncontradicted evidence that he paid the amount of dividends to appellant as they came in, the inclusion of these dividends in Hogg’s return does not prove that he owned the stocks. . . . All the other facts and circumstances above mentioned with respect to Hogg’s immediate endorsement of the stock certificates, his payment of these dividends to appellant and appellant’s checks to Hogg, in our opinion preclude the claim that Hogg owned any of the stocks, or that the income tax return established such ownership.”

The law of this State as regards the granting of leave to file a bill of review on the ground of newly discovered evidence is well settled. In Elzas v. Elzas, 183 Ill. 132, 134, it is said:

“Leave to file a bill of review for newly discovered evidence is not granted as a matter of right, but granting or refusing' such leave rests in the sound discretion of the court to which the application is made. The newly discovered evidence upon which the court is asked to review and reverse the former decree must not be cumulative, and must be of an important and decisive character, if not conclusive. It must be such as would apparently have produced a different result had it been known and brought before the court. (Griggs v. Gear, 3 Gilm. 2; Walker v. Douglas, 89 Ill. 425.) The petition will not be granted except upon affidavit satisfying the court that the alleged new matter was not known to the petitioner, and could not have been discovered and produced or used by bim by the exercise of reasonable diligence, before the entry of the decree sought to be reviewed. ... If the petitioner has been negligent in discovering and producing the evidence at the former hearing his negligence will bar any relief. He must show that the evidence was such that with the use of reasonable diligence he could not have known of it before the hearing, and the general rule is, that evidence which tends simply to impeach testimony given on the hearing will not be sufficient to sustain a bill of review. (Boyden v. Reed, 55 Ill. 458.) When the petition is presented the court considers its statements, and the affidavits in support of it, and the record in the original case. The court then, upon looking at the whole case, exercises a sound judicial discretion, and unless such discretion has been abused the decision will not be disturbed. ‘The true rule would seem to be, that unless there has been an abuse of the fair discretionary power with which the circuit court has been invested in the matter of such applications its decision should not be disturbed.’ (Schaefer v. Wunderle, 154 Ill. 577, 582; Stockley v. Stockley, 93 Mich. 307.) ”

In Lewis v. Topsico, 201 Ill. 320, 338, after quoting with approval what is said in the Elzas case, supra, as to the negligence on the part of a petitioner, in not discovering and producing the evidence at the former hearing, barring relief on a motion for leave to file a bill of review, the court quotes from Lord Eldon in Simpson v. Watts, 6 Rich. Eq. (S. C.) 364, as follows: “The question always is, not what the petitioner knew, but what, using reasonable diligence, he might have known.” In Corbly v. Corbly, 304 Ill. 323, 327, 328, it is said: “The bill of review for newly discovered evidence is not favored by the courts. Its allowance is not a matter of right in the party but rests in the sound discretion of the court, to be exercised cautiously and sparingly, and only under circumstances that demonstrate it to be indispensable to the merits and justice of the cause.” (See, also, Nestor Johnson Mfg. Co. v. Alfred Johnson Skate Co., 266 Ill. App. 130, 137, 139; certiorari denied.)

In here urging in the present suit that the superior court abused its discretion in denying complainant’s motion for leave to file her bill of review, complainant’s counsels’ main contention is that the newly discovered evidence, as set forth in complainant’s petition and affidavits, “will produce a different result or decree in the case.” In their discussion of the contention they first mention certain statements or holdings in the Supreme Court’s opinion (which in our review of that opinion we have above italicized) viz.:

(a) “There is no evidence in this record establishing that Hogg’s funds were used to purchase the stocks.”

(b) “Appellant made payments to Hogg by checks totaling about $57,000, and although there was no evidence directly establishing that these payments were made for the purpose of having Hogg purchase the stock for appellant, the only reasonable conclusion is that they were for that purpose.”

(c) Certain enumerated facts and circumstances “in our opinion preclude the claim that Hogg owned any of the stocks.”

And then counsel argue in their brief that

“It is conclusive that the premise of the whole decision of the case, on which the present decree of the court was entered, rests upon those parts above quoted, (a), (b) and (c), as to the ownership; and that the decision and the decree, awarding the stocks to defendant (except the Stewart-Warner stock), rests upon the question as to who was the owner of the stocks, to be determined by the facts as to who furnished the consideration to purchase them.”

We cannot agree with the contention or the argument. Early in the opinion of the Supreme Court it is stated that under the issues as made by the pleadings “the sole question in this case is whether Hogg’s transfers to appellant (defendant in the present suit) were made at a time when he (Hogg) was mentally incompetent or when a fiduciary relation existed, and without consideration. ” This ultimate question was finally decided, as appears from the above quoted portions of the exhaustive opinion of the court, adversely to complainant, except as to the Stewart-Warner stock, and, as we read the opinion, said decision of the court does not conclusively rest upon the “premise” or “question” as stated by complainant’s counsel. Furthermore, we agree with the statements of defendant’s counsel, contained in their brief here filed, viz.: “The-new evidence, at most, would tend to prove only that Hogg drew checks on his bank account to pay the purchase price, of some of the stocks. It would not tend to prove the allegations of complainant’s bills that Hogg’s assignments to defendant were without consideration. Nor wuuld it tend to prove the no less essential allegations of the bills that Hogg’s assignments to defendant were made at a time when Hogg was incompetent and during the existence of the alleged fiduciary relation. ’ ’ Furthermore, after reviewing said opinion of the Supreme Court and the record in the present suit, we are of the opinion that the claimed newly discovered evidence is such as should be regarded as but cumulative to that introduced before the master in the original action.

And we are of the opinion that complainant’s petition and the affidavits accompanying it do not sufficiently show that complainant exercised due diligence in discovering and producing the claimed new evidence. Complainant alleges in the petition that ‘ ‘ shortly after October 30, 1930,” through the efforts of her accountant (Hawkins) and others, she first discovered the “new matters.” This was more than nine years after Hogg’s death and more than three years after the master had filed his report (April 19, 1927), and more than three years after the entry of the original decree (July 14, 1927), which was in complainant’s favor except as to the Carbide stock. One of the affidavits discloses that no attempt was made to obtain any information regarding Hogg’s bank account with the Union Trust Company until May 20, 1924. This was after much evidence had been taken before the master. Another of the affidavits discloses that the first attempt to obtain information from stock brokerage concerns, relative to Hogg’s dealings therewith in the purchase or sale of stocks, was after Decernber 23, 1926, when the opinion of the Supreme Court in Hogg v. Hohmann (323 Ill. 545) was handed down. This was about the time that the master in the original action had issued his report (January 10, 1927), in which he recommended that complainant’s bill be dismissed for want of equity. And the information obtained from the stock brokers was available at all times since August 30, 1921, when complainant’s original bill was filed. And there are other facts and circumstances contained in the present record which convince us that the superior court did not abuse its discretion in denying complainant leave to file her bill of review, both -on the ground of her lack of due diligence in discovering and producing the claimed new evidence and on the ground that said evidence, if heard, could not “produce a different result or decree in the case.” And we think that what was said by Lord Eldon upon a similar petition, in Young v. Keighly, 16 Ves. 348, 349, and quoted in Society of Shakers v. Watson, 77 Fed. 512, 523, may here appropriately again be quoted, viz.:

“It is most incumbent on the court to take care that the same subject shall not be put in a course of repeated litigation, and that, with a view to the termination of suit, the necessity of using reasonably active diligence in the first instance should be imposed upon parties. The court must not, therefore, be induced by any persuasion as to the fact that the plaintiff had originally a demand, which he could clearly have sustained, to break down rules established to prevent general mischief at the expense even of particular injury. ’ ’

The judgment of the superior court of October 30, 1931, denying complainant’s motion for leave to file her bill of review, is affirmed.

Affirmed.

Keener, P. J., and Scanean, J., concur.