text:
    Ayars State Bank et al., Appellees, v. Oliver Standley et al., Appellants.
    Gen. No. 8,097.
    1. Appeal and error — right to dismiss for not filing proper abstract. An appeal is subject to dismissal for failure to present an abstract under the rules.
    2. Fraudulent conveyances — what is not valid consideration for conveyance. A conveyance by husband and wife by quitclaim deed of a farm some ten minutes before the entry of judgments against them held to be in fraud of creditors on evidence showing that the only consideration was one dollar and a quitclaim to timber land to which the grantor had no title.
    3. Fraudulent conveyances — what constitutes grantee’s knowledge of fraud. A grantee who gave as consideration for a farm a quitclaim to timber land to which he had no valid title and cash of one dollar was held to have guilty knowledge of the fraud of his grantors as against their creditors in making such conveyance to him on evidence that letters between the grantee and his grantors were fictitious, that the deed from the grantees was an afterthought, and further showing that the grantee had let the farm be bought in for taxes by an officer of his bank.

      Appeal by defendants from the Circuit Court of Shelby county; the Hon. F. R. Dove, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 31, 1927.
    W. L. Kelley and Ward & Pugh, for appellants.
    J. J. Baker, pro se, S. S. Clapper and Geo. B. Rhoads, for appellees.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

In this cause we have been compelled to search the record to ascertain who were the parties defendant in the circuit court and appellants in this court. The appeal is subject to dismissal for failure to present an abstract under the rules.

Appellees, having severally recovered judgments against appellants Oliver Standley and Pearl Standley in the circuit court of Shelby county, on October 17, 1923, for the total sum of $10,000.55, and executions issued upon said judgments having been returned “not satisfied,” presented their bill of complaint to that court to set aside a conveyance by quitclaim deed made by appellants Oliver Standley and Pearl Standley, husband and wife, purporting to convey to appellant J. E. Dazey, then president of the First National Bank of Findley, eighty acres of land, with the crops thereon, in Shelby county. It was charged and proven that Oliver Standley owned an undivided one-half interest in said lands; that Pearl Standley owned a life estate in the other undivided one-half interest, and that the eighty acres was free from all incumbrances, and charged that the lands were of the value of sixteen thousand dollars. The deed stated a purported consideration of one dollar only and was filed for record about ten minutes before the entry of the judgments. Appellants Standleys lived upon the lands and, with eighty acres adjoining which were leased, worked the same as a farm, upon which, at the time of said conveyance, there was a considerable amount of corn standing “not shucked,” and Oliver Standley had a considerable number of horses, a tractor, stock and farm tools with which he farmed and worked said lands. Later, on March 14, 1924, appellant Oliver Standley presented his petition to the United States District Court for the Eastern District of Illinois, praying to be adjudicated a bankrupt. In this petition appellant scheduled indebtedness in addition to said judgments, a personal property tax of $27 and $55.40 of indebtedness only. He listed property — household goods — of the value of $35, one cow and three calves of the value of $50, and two hundred bushels of corn of the value of $100, all of which was claimed as exempt property, and in addition appellant scheduled a section of land known as section five, further described as being in Chicot county, Arkansas, subject to an incumbrance of $8,300 and as of the value of $17,300. This land, purporting to have been conveyed by appellant J. E. Dazey to Oliver and Pearl Standley, on October 17, 1923, for a purported consideration of one dollar, was presented to this suit and to the bankruptcy court as the consideration which appellant Dazey pretended to give to the Standleys for the eighty acres of land in Shelby county. The deed had never been recorded. It purported to have been acknowledged before one C. E. Coventry, who was an assistant cashier in Dazey’s bank, on said 17th day of October, 1923. The United States District Court refused to adjudicate Oliver Standley as a bankrupt on the ground of fraud. One J. J. Baker was appointed trustee in bankruptcy by that court, and the trustee has filed a supplementary bill in this suit and now becomes the appellee in this cause.

The decree found that the conveyance of the Standley land to appellant Dazey was without consideration and. was made by appellants with the fraudulent intent of hindering and delaying the appellees as judgment creditors in the collection of their debts, and that appellant Dazey had knowledge of said fraudulent purpose and participated in the fraud. The decree further found that the Arkansas land was of no value and set aside the conveyance by the Standleys to Dazey as to the judgments, subject to the homestead right of Oliver Standley and Pearl Standley in the eighty acres of land in Shelby county. Appellants have appealed.

It is contended by appellants that there was a good and valid consideration paid by Dazey for the Standley land, and that Dazey was not a party to and had no knowledge of any fraudulent intent to defraud the appellees. It is insisted by appellants that the record does not establish a fraudulent transaction. We have read the testimony carefully and examined the exhibits and given both due and ample consideration. There is no contention about the law applicable to the case. The lands in Arkansas were “cut over,” stump lands, not situated upon a public highway, having no earning value, incumbered by a mortgage to the amount of $8,300 and in which appellant Dazey and his grantor, one Vennum, connected with Dazey in the bank, neither had any legal or equitable title. It was shown by voluble letters, purporting to have been written by Dazey to Standley shortly before the transaction, that Standley should under no consideration think of making the trade unless Standley’s three sons, all of whom were engaged in other farming operations or occupations, would join him, and he provided for a large sum of money to erect buildings, saw mills and development improvements for which purposes Dazey proposed to loan Standley a small portion of the requisite sum, namely, five thousand dollars. Standley and Dazey lived only about ten miles from each other and were connected by telephone, yet they appear to have written letters to each other of great length in regard to this transaction shortly before October 17, 1923. The envelopes nowhere appear. Dazey appears by the letterheads to be president of the First National Bank of Findley and an attorney at law. Vennum was cashier of the bank and Coventry was assistant cashier. One letter appears under date of August 20, 1923. In the letter Dazey states: “I want you to fully understand that I would not advise you to make a trade for this land unless yourself and boys are to move on it and go to work developing it, and I will not make a loan of $4,800 a section unless it is understood that you are to move on it as above stated. I realize that it is some task to mpve and get settled and that I would not require you to do so under one year.” The substance of this statement is repeated three or four times in this letter. Under date of October 12,1923, Dazey purports to write Standley another letter acknowledging a purported letter from Standley in which Standley has agreed to trade lands. In this letter Dazey agrees to loan Standley five thousand dollars and two or three times it is reiterated: “I have explained to you that you do not get the right to the hickory timber that is in litigation, and you are getting the right to redeem. I wanted you to know just how it all stands, and I agree to furnish $5,000.00 for that purpose. I want you to know just what you are getting, as I told you without your labor I do not think this would be a good trade for you, but even just yourself with what nigger help you could hire I then think it would be a good trade,” etc. The letters pretend to state that Vennum owns the land and if the' trade is made Dazey will have to purchase the lands from Vennum. As to Vennum’s title to the lands in question, the Jackson-Vreeland Land Corporation on December 31,1919, conveyed said section five, with other lands, to Mnnsell and Asians, subject to a mortgage for $20,400, which grantees assumed and agreed to pay. On April 10, 1920, Munsell and Askins conveyed said section five to E. M. Vennum, subject to a mortgage for $4,800. In April, 1922, upon a foreclosure by the Bank of Saginaw, Michigan, against the JacksonVreeland Land Corporation upon the mortgage mentioned, the title to all of section five had passed to the Bank of Saginaw by a commissioner’s deed, and said lands were owned by the Bank of Saginaw on October 17,1923. The laws of Arkansas provide that upon the foreclosure of a mortgage the owner of the land when in possession may redeem within one year after the sale. On January 8, 1923, Vennum brought suit to redeem. He was not able to establish possession. Nothwithstanding possession, the Bank of Saginaw offered to accept its money, whereupon Vennum suffered a nonsuit and did not pay. On November 26, 1923, Vennum filed a lis pendens, and another suit to redeem, regardless of his conveyance to Dazey, and was defeated.

It is interesting to note the deed (quitclaim) which is represented to have been given by Vennum to Dazey on September 22, 1923, and which recites: “This deed is subject to all existing record liens, as well as all accrued taxes and special assessments against said lands, and the rights to ascertain suit now pending for the cutting of the hickory timber from said lands.” Coventry purports to have taken Vennum’s acknowledgment to said deed on September 22, 1923, and certifies : “My commission expires November 28, 1927.” How did Coventry know he was to be reappointed notary public on November 28,1923, for another term? Nothing could be plainer than that the Vennum and Dazey deeds were after-thoughts and that there was not even a pretended consideration on October 17, 1923. The deeds from Vennum to Dazey and from Dazey to the Standleys were never recorded and were never heard of by appellees until the bankruptcy proceedings in 1924. This view is strongly corroborated by the particularity in and laborious correspondence which passed between Dazey and Standley prior to the pretended transaction. The title, to section five passed from the Bank of Saginaw to the Jerome Hardwood Lumber Company for a consideration of one dollar on January 29, 1924. The records in evidence fur-, ther established that all regular and special taxes assessed upon section five, running from eight to twelve hundred dollars per annum, were in default and not paid for the years 1919, 1920, 1921 and 1922 and the land had been sold for taxes. As to the value of the land, the witness Breckenridge had been a civil engineer and surveyor for thirty-five years, and at the request of appellant Dazey had surveyed and cruised the lands in October, 1923. He placed a valuation upon the lands of ten to twelve dollars per acre, including all timber upon the lands, and this estimate is fairly in line with the great weight of the evidence. None of the appellants, Dazey, Vennum or Pearl Standley, testified in the cause and the testimony is overwhelming that Dazey gave no consideration for the Standley farm and knew the purpose of the entire ■transaction and doubtless conceived it.

In order to secure credit at appellee First National Bank, Oliver Standley made a statement of his property and claimed to own a threshing outfit, valued at $2,000; fourteen horses, valued at $1,400; two mules, valued at $200; thirteen cattle, valued at $400; thirty hogs, valued at $500; farm implements, valued at $500; 1,600 bushels of corn; fifty bushels of wheat and oats, valued at $800, and the undivided one-half of said eighty acres of land, which he represented to be of the value of twelve thousand dollars. His statement over his signature showed that he owed no debts. Appellee’s president, with a justice of the peace, went to the Standley home a little after noon on October 17, 1923. A real estate mortgage and a chattel mortgage had been prepared and the officer was taken to the farm to take the acknowledgment of appellants to the instruments. There had been some talk with appellants that the bank would have to have security. The indebtedness had been accumulating for four or five years and notes had been renewed. Humphrey, the bank’s president, went into the house and talked the matter over with Mr. and Mrs. Standley. He stated to them that the bank was very anxious to get the matter fixed up that day. Standley said he would not sign the papers without consulting his lawyer. Humphrey offered to take the Standleys to consult their lawyer. They refused to go. Humphrey told them that the matter had to be fixed that day and that he was on his way to Shelbyville, the county seat. Humphrey left the Standley home at about twelve-thirty and arrived in Shelbyville at one-fifteen, and entered the notes in judgment at twenty minutes after two. The deed from the Standleys had been filed for record at just two o’clock on that day. It is conceded that Standley owned a tractor and an outfit of farming implements at the time the judgments were entered, and that the farm was stocked with cattle and horses. Standley also owned an automobile. Nevertheless, the sheriff of said county was able to levy only upon “one pile of junk, one sled, one horse, one set of tools, one set of single harness and five shares of stock in the Moweaqua .Farmers Cooperative Grain Co.” All the other personal property had been “spirited” away. Later, a schedule of personal property was presented, claimed to have been made out by his sons, and all the property listed in it was claimed as exempt in the bankruptcy court. Appellant Standley testified that all of his personal property except that scheduled, belonged to his three sons; that he left Shelby county after October 20, 1923; that his wife left with him; that they had started for Arkansas and went to Decatur, where they stayed a week and traded their old car for a five-passenger Ford car; that he was looking for work — “any kind óf work I could get to do to make a dollar — ”; that they left Decatur for Arkansas and went to Dana, Indiana; that they did not go to Dana but near there; that they stayed all night at a widow woman’s. “This woman was short of corn buskers and I stopped to shuck corn a while and the roads got bad. ’ ’ They left the widow’s home in February, 1924, and at that time Standley went to Arkansas for a few days. Since his return he and his wife have been living on the eighty acres of land, claiming that one of their sons, who lived at some other place, had a lease from Dazey of this eighty acre tract. The son did not testify. Dazey pretends not to have paid the taxes upon the eighty acres of land as a dutiful owner should do, but has permitted the lands to be sold for taxes and Coventry has bid them in.

The record is full, complete and most convincing that the transaction was fraudulent and entered into on the part of appellants, Oliver Standley, Pearl Standley and J. E. Dazey, for the purpose of defeating appellees in the enforcement of their judgment debts. No cross error has been assigned by appellees as to the homestead estate of the Standleys in the land. The decree, therefore, of the circuit court of Shelby county should be and is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Shurtleff

license: Public Domain

text:
    Bertha M. Rolofson, Complainant and Appellee, v. Charles S. Rolofson, Trustee under the Last Will and Testament of John B. Rolofson, Deceased, et al., Defendants. John J. Rolofson, Appellant.
    Gen. No. 8,112.
    1. Wills — general rule of construction. The paramount rule in construing wills is to ascertain from the language of the whole will the testator’s intention and then to give it effect unless contrary to public policy or some rule of law.
    2. Wills — meaning of “heirs” when used alone. In ease the son of a testator has died leaving a son and widow, the word “heirs,” used by the testator to describe those to whom he left his estate, but to which he added no descriptive words to show they took under the statute of descent, held not to include the widow of the testator’s son.
    Appeal by defendants from the Circuit Court of DeWitt county; the Hon. George A. Sentel, Judge, presiding.
    Heard in this court at the April term, 1927.
    Reversed and remanded with directions.
    Opinion filed October 31, 1927.
    Leonard W. Ingham and Herrick & Herrick, for appellant.
    W. F. Gray and L. O. Williams, for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

This suit involves a construction of the will of John B. Rolofson, deceased, and the determination of the beneficiaries of the trust fund into which the estate was converted under the terms of the will. The testator died June 30, 1922. He left a last will and testament, which had been duly probated, the essential provisions of which were as follows:

“Item One. I order'and direct that my executors hereinafter named, pay all my just debts and funeral expenses as soon after my decease as conveniently may be, from my personal estate.
“Item Two. After the payment of all funeral expenses and just debts, I give and bequeath to my daughter, Arabella Rolofson, two thousand dollars ($2,000).
“Item Three. I hereby give and devise to my sons, John J. Rolofson and Charles S. Rolofson, all of the real property of which I may die seized, in trust, however, for the following uses and purposes and none other: for the period commencing at the date of my decease and ending on the 1st day of March, next, after one year after the date of my said decease, they shall control said real estate and collect the rents and profits thereof and pay out of said sum the taxes, insurance and repairs of said property and the cost of administration of my estate.
“Item Four. On the 1st day of March next after one year after the date of my decease and from thence until the provisions of this trust have been fully and completely paid unto my executors as herein stated, I hereby give and devise unto John J. Rolofson and Charles ¡3. Rolofson the land hereinafter in this item described, in trust for the following uses and purposes and none other: They shall, as soon as practical after the expiration of the 1st of March next after one year from the date of my decease, sell at public vendue and after first advertising in some newspaper of general circulation in the County of DeWitt, in the State of Illinois, for four consecutive weeks,’ the time, place and terms of such sale, at the east door of the courthouse or some other suitable place in the City of Clinton, County of DeWitt and State of Illinois, as follows : ’ ’

The will then describes the real estate to be sold and proceeds:

“My executors will, as soon as practical after the making of said sales, execute to the purchaser or purchasers of said land, or any part thereof, good and sufficient deed conveying the premises so sold to the purchaser or purchasers thereof, terms of said sale being that the purchaser or purchasers shall pay ten per centum of his purchase price to my executors on day of sale, and the balance of the purchase price upon the completion of said sale and the transfer of deed or deeds of conveyance to the property. .
“Item Five. I hereby• direct my executors to convert all of my personal and mixed property into money and with the remainder of the money derived from the sale of real estate mentioned in item four, be equally divided among my children, that is to say, I do hereby give, devise and bequeath unto James M. Rolofson, Laura Swearingen, Arabella Rolofson, Charles S. Rolofson, and John J. Rolofson, each a one-sixth (1-6) interest of said money, and to Ralph W. Thorp and Thornton Thorp each a one-twelfth (1-12) interest of said money, and in case any of said named children be dead at that time, then the share of such deceased child be paid to his or her heirs.
“Item Six. I do hereby nominate and appoint my sons, John J. Rolofson and Charles S. Rolofson, to be my executors of this, my last will and testament, hereby revoking all former wills by me made.”

The executors have settled the estate of the testator, paid all of the debts and claims against the estate, converted the real and personal assets into money, and there remains for distribution the sum of $51,622.56, after reserving a fund of one thousand dollars for taxes, for the payment of which there is a contingent liability.

Appellee presented her bill of complaint to the circuit court of DeWitt county, averring that she is the surviving widow of John Jay Rolofson, one of the named executors and trustees in the will, who departed this life, on December 9, 1923, intestate, leaving him surviving as his only heirs at law the complainant, appellee, as his widow, and the appellant, his son and only child by a former wife; that the testator died, leaving him surviving James M. Rolofson, Laura Swearingen, Arabella Rolofson, John Jay Rolofson, Charles S. Rolofson, Ralph W. Thorp and Thornton Thorp, named in the will; that the said John Jay Rolofson and Charles S. Rolofson qualified and assumed the duties of executors and trustees under the terms and conditions of the will, and performed such duties jointly until the death of said John Jay Rolofson, whereupon said Charles S. Rolofson has acted as-sole executor and trustee. Complainant averred that as heir of said John Jay Rolofson, deceased, she was entitled to receive as her distributive share of said estate the sum of $2,867.92, but that said executor and trustee refused to pay the same or any portion thereof to her. There was a prayer for the construction of the will and a decree of distribution. Charles S. Rolofson, executor, and appellant John Jay Rolofson, Jr., answered the bill, denying appellee’s right to demand distribution or to take any portion of the estate, and averring that under item five of said will the interest of the beneficiaries is a contingent future interest, depending upon the beneficiaries surviving the period of distribution; that the term “heirs” was used in the will meaning child or children and does not include the surviving widow; that John Jay Bolofson never acquired a vested interest in said funds; that the conversion of the estate of John B. Rolofson into money did not occur until after the death of said John Jay Rolofson, and averring that appellee has no right or title to any distributive share in the estate, etc. It was shown by the proofs as to the marriage status of testator’s children, that James M. Rolofson, a son, was married and living with his wife. He had been married twice, and there was one child living of the first marriage and five children living of the second marriage; that Laura Swearingen, a daughter, was married and living with her husband. They had been married fifty years. They had two children, and' one was living at the time of the death of John B. Rolofson; that Arabella Best, a daughter, was married in October, after the death of her father in June, 1922, and was living with her husband; that John Jay Rolofson, a son, died after his father, at the age of sixty-two years. He had been married twice. The first wife died in 1910. One child was born of that marriage. John Jay Rolofson was living with Bertha M. Rolofson, his second wife, at the time of the death of John B. Rolofson, and left him surviving his son, John J., and his widow, Bertha M., parties to this suit; that Charles S. Rolofson, a son, was living with his wife, and had been married about forty-two years. He had eight children; six children were living; that Mattie Thorp, a daughter, died about 1920, before her father died. She left her surviving her husband, William H. Thorp and two children, Ralph W. and Thornton. Both the boys were married before their grandfather died and each was living with his wife. The husband and two boys and their wives were all living at the time of the death of John B. Rolofson.

John B. Rolofson was on friendly terms with his daughter, Mattie and her husband, William H. Thorp, both before and after the death of Mattie Thorp, and the friendship continued up until John B. Rolofson died. The will was made April 6, 1922, about two years after the death of Mattie Thorp.

It appears by the proofs that the son of testator, John Jay Rolofson, at his death left a very meager estate — a house and lot in Wapella and about twenty-five hundred dollars in personalty. There was a decree in the lower court granting the prayer of appellee’s bill of complaint, and the stepson, John Jay Rolofson, Jr., has appealed.

Appellant contends that the court erred in finding and decreeing that the word “heirs” in the fifth clause of the will is used in its technical sense, as importing those persons designated by law to succeed to the estate in case of intestacy. It is argued from the wording of the will that it is a strong circumstance, tending to show that the testator intended his estate to descend to the issue of the legatees named in the will, that he made no provision for William H. Thorp, surviving husband of his deceased daughter, Mattie, with whom he had been on friendly relations all his life, and it is strongly contended that if the testator had intended any of the surviving widows or husbands of his children, who should not live to the date of distribution, to take any interest in his estate, provision would have been made for William H. Thorp. It is to be noted that all of the children of the testator, at the time of his death, were well advanced in years. When the will is' analyzed, it will be found that the testator made exactly the same provision for William H. Thorp that he made for appellee or the husband that Arabella Rolofson married after her father’s decease, in case of her own death. Under the proofs, the two grandsons, Ralph Thorp and Thornton Thorp, were both married and living with their wives, but neither had any children. In case of the death of either grandson, William H. Thorp would have been an heir to his estate. The same situation might have arisen in the family of Arabella Rolofson. It is true that the testator desired his estate to descend to his own children, but there is no wording in the will, other than the word “heirs,” indicating that the property was to be entailed or limited' to the issue of his children in case of their decease.

The first rule of construction to be applied in this case is the cardinal rule of construction of all wills— the rule as to the intention of the testator as expressed in the will itself. In Perry v. Bowman, 151 Ill. 25, 31, the court laid down the rule in the following language : “In construing the will, the intention of the testatrix, as derived from all its provisions, will control, and effect will be given to such intention when ascertained.”

In Pereboom v. Cloyd, 317 Ill. 85, the court held: “It has been often decided that the paramount rule in the construction of wills is to ascertain the intention of the testator from an examination of the language of the will and then give effect to such intention unless contrary to-public policy or some rule of law,” citing McComb v. Morford, 283 Ill. 584.

The real question in this case is, who constituted the “heirs” of John Jay Rolofson at the time of his decease and at the time of distribution, under the will of testator. John Jay Rolofson died, leaving a widow, the appellee, and a son, the appellant, both of whom were living at the time of distribution. Was the widow, appellee, an “heir” of the estate of her husband, John Jay Rolofson, he having left a surviving son? That is the only question in this case. In Gauch v. St. Louis Mut. Life Ins. Co., 88 Ill. 251, the identical question arose upon a policy of insurance, and Mr. Justice Schofield elucidated the subject fully. The rule followed in Rawson v. Rawson, 52 Ill. 62, and Richards v. Miller, 62 Ill. 417, in both of which cases the intestate left no surviving children, is differentiated, and the court holds as to those cases: “In those cases, the deceased left no child or children nor descendants of child or children surviving; and hence the widow in the first case, and the husband in the last case, occupied the relation to the deceased which entitled them to one-half of the real estate, and the whole of the personal estate, upon renouncing the benefits of the bequests and devises of the respective wills. In those cases, the husband and wife, respectively, were held to be heirs at law, under the existing facts. Had there been a child or children or descendants of a child or children surviving, however, it is evident it could not have been held they were heirs at law, on the grounds stated in the opinions, for, in that contingency, the child or children, or descendants of child or children, would have been entitled to the property, subject to the claim of dower in the real estate, and the claim for one-third of the personal property of the surviving husband or wife.”

The court further held: “In certain contingencies, brothers, sisters, parents, and even kindred in the remotest degree, are heirs at law; but it would be absurd in the extreme to suppose that an individual having children, who should devise and bequeath his property to his ‘legal heirs,’ intended all his kindred should take. The legal presumption, in such case, would clearly be, that he intended those to whom the law would give his property — real and personal — he dying intestate; and hence it is the actual capacity of inheritance, at the time of the death of the owner of the property, and not the fact that a particular person might have inherited from him under a state of facts which did not exist, that determines who is heir.

“It is plain the widow here did not take as "did the parties in Rawson et al. v. Rawson et al., and Richards v. Miller, supra, because Gauch left children surviving him, and she can not, therefore, be declared ‘legal heir’ upon the grounds upon which the wife in the one case and the husband in the other were there so declared.

“But reliance is placed by counsel for appellant on this language, found in the Revised Statutes of 1874, in the fourth clause of § 1 of chap. 39, entitled ‘Descent:’ ‘When there is a widow or a surviving husband, and also a child or children, or descendants of such child or children of the intestate, the widow or surviving husband shall receive, as his or her-absolute personal estate, one-third of all the personal estate of the intestate.’ So far as this affects the widow, it is not of recent enactment. The only new feature in it is that recognizing the same right of the husband in respect to the wife’s estate that the wife has in respect to that of the husband; and this was, obviously, to "harmonize with the statute abolishing tenancy by the curtesy and giving the husband dower in the lands of the deceased wife, the same as the wife has in the lands of the deceased husband. See Rev. Stat. 1874, chap. 41, title, Dower, § 1. The provision was first enacted in section 6 of ‘An act to amend an act concerning wills,’ approved February 11, 1847. (Laws of 1847, p. 168.)

“The section then read thus: ‘The word “dower,” as used in the 46th section of the 109th chapter of the Rev. Stat., entitled “Wills,” shall be construed to include a saving to the widows of persons dying intestate, of one-third of the personal estate forever, after the payment of debts.’

“Section 46 of the Revised Statutes of 1845, which was thus amended, declares how estates of intestates shall descend. Rev. Stat. 1845, p. 545.

“In Rawson et al. v. Rawson et al., supra, it was argued that this amendment repealed so much of the section amended as gave to the widow of an intestate who left no child or children or descendants of child or children surviving, one-half of the real, and the whole of the personal estate, but this court said: ‘It is very apparent, we think, that this act is treating of a widow entitled to dower, not as an heir under the 46th section, under which the claim in question is presented. The only subject before the legislature, when this amendatory act was passed, was, the rights of the ividow as such. It ivas not designed to abridge her rights as an heir, under the statute of descents, but to enlarge her doAver rights.’ If that Avas the object and effect of.that enactment then, it can hardly be seriously claimed that the revision of 1874 has changed it.

“That it was intended to be used in the same sense in the revision of 1874 is, we think, further obvious from the 10th section of Chap. 41 of that revision, entitled ‘Dower,’ which provides: ‘Any devise of land or any estate therein, or any other provision made by the will of a deceased husband or wife for a surviving wife or husband, shall, unless otherwise expressed in the will, bar the dower of such survivor in the lands of the deceased, unless such survivor shall elect to and does renounce the benefit of such devise or other provision, in which case he or she shall be entitled to dower in the lands and to one-third of the personal estate after the payment of debts.’

“Now, this very clearly has no reference whatever to the rights of the husband and wife as heir to each other, but solely to their rights as widow or surviving husband. And this is placed beyond cavil by the 12th section of the same act, which exclusively relates to cases where, under the statute, the one inherits from the other, and a will has been made.

“The word ‘heir’ has a technical signification, and we must presume that, in the policy, the term ‘legal heirs’ was used in its strict and primary sense, there being nothing in the context to show that it was used in any other sense. It was said in Richards v. Miller, supra, ‘the word heir, when uncontrolled by the context, designates the person appointed by law to succeed to the real estate in question in case of intestacy; ’ referring to 2 Jarman on Wills, 1. Jacob says, ‘heir is he who succeeds, by descent, to lands, tenements and hereditaments, being an estate of inheritance.’ We know of no respectable authority, and venture there is none, holding that one entitled to dower or an interest in the nature of dower, of any allowance of personal property only, because of the survivorship of the husband or wife, is held to be included within the legal definition of ‘heir.’ Nor is the distinction between the word ‘widow’ and the word ‘heir’ less marked in common parlance. No one having children speaks of his wife, in contemplation of her survivor-ship, as his ‘heir;’ but it is believed it is universal that she is referred to as ‘widow,’ and the children as ‘heirs.’

“There is, therefore, no reason, in our opinion, for holding that when Gauch had the words ‘legal heirs’ inserted as the beneficiaries of the policy, he intended his wife.”

The rule laid down in the Gauch case has been followed in Alexander v. Northwestern Masonic Aid Ass’n, 126 Ill. 558, 565. (In both of which cases it is held that it is the actual capacity of inheritance at the time of the death of the owner of the property that determines who is heir, which is an elementary rule.) Black v. Jones, 264 Ill. 548; McGinnis v. Campbell, 274 Ill. 82, 85; Smith v. Winsor, 239 Ill. 567; Fraternal Tribunes v. Teutsch, 170 Ill. App. 47, 51, and Walker v. Walker, 207 Ill. App. 186, 194. In the People v. Emery, 314 Ill. 220, 225, it was held: “When an heir takes in the character of an heir he must take in the quality of heir, and all heirs taking as heirs must take by descent,” citing Baker v. Scott, 62 Ill. 86. In the citation it is construed to the end that the rule in Shelley’s case would apply. Appellee cites Walker v. Walker, supra, and urges that the Supreme Court reversed the Appellate Court (see 283 Ill. 27) upon the very principle contended for by appellee in the case at bar. We do not so understand the rule announced. The court held:

“Counsel for the trustee relies strongly on the reasoning and conclusion of this court in Gauch v. St. Louis Mutual Life Ins. Co., 88 Ill. 251, as to the wording of a life insurance policy which provided that the money paid under the policy should be made payable to the legal heirs or assigns. That case is clearly distinguishable in the difference between the wording of the policy and that of this will on the point here under consideration. There was no reference in that insurance policy to the legal heirs or assigns ‘ according to the Statute of Descent in this State, ’ while the will here does contain such a provision. If this will had simply provided that Minnie Whiting’s share should be distributed at the end of the ten-year period, if she was not living, to her ‘heirs-at-law, ’ and stopped there, then it might be argued with more force that the testator intended the property to go to her heirs who were of his blood and that the husband would not be included as one of such heirs. But where there is an express reference, as here, to the statute of distribution, and the husband would take under such statute of distribution, by the great weight of authority in this and other jurisdiction^, and by sound reasoning, the husband must be held to be included in the term ‘heirs-at-law. ’ The Appellate Court wrongly held that he was not included.”

In Walker v. Walker, supra, it was further held: “If the will be construed to mean that the ‘heirs-at-law, ’ do not include the husband of Minnie Whiting, then, if the property is to be distributed ‘ according to the Statute of Descent in the State of Illinois, ’ it only provides for the distribution of two-thirds of the Minnie Whiting share, because under the Statute of Descent the children of Minnie Whiting would only take two-thirds and the surviving husband would take the other one-third. To so hold would be, it seems to us, to put an unreasonable and unnatural construction upon the wording of the will and would leave the words of the will, ‘according to the Statute of Descent in the State of Illinois,’ without any real meaning.”

Appellee cites Henkins v. Henkins, 287 Ill. 62, but upon examination of the facts in that case the widow was held to be an heir because her intestate died leaving no child or children or the descendant of any child or children. The same state of facts existed in Harris v. Rhodes, 130 Ill. App. 233, 236, which was cited by appellee.

The words “heirs” and “heirs at law” are in a legal sense the same, Smith v. Winsor, supra, and in that case the court held: “It seems plain to us that the words ‘heirs at law’ were used by the testator in their colloquial or popular meaning and not in their technical sense. That excludes the wife.”

In Meeker v. Steepleton, 309 Ill. 337, 338, the court held: “When the word ‘heirs’ is used in a will there is a strong legal presumption that it is used in its technical sense, as denoting the whole of the indefinite line of inheritable succession,” not of those who might have been heirs under a different state of facts, but those and that whole class who did inherit the property of the intestate as applied to the particular facts of the case in hand. We do not find that the principle of the rule laid down in Gauch v. St. Louis Mut. Life Ins. Co., supra, has ever been departed from when the term “heirs’’ is used in its technical sense. We do find various constructions when colloquial and popular terms are attached to the term heirs, such as “heirs who take under the statute of descent,” and “heirs to whom the estate is to be distributed under the statute,” and similar provisions. We are unable to escape the conclusion that when the term “heir” is used in its technical sense, it does not include the surviving wife or husband, except when the facts of the case come under clause three of section one of the chapter entitled “Descent,” Cahill’s St. ch. 39, ¶ 1, providing for the widow or surviving husband when there is no child or children or descendants of a child or children of the intestate.

It follows that the circuit court of DeWitt county erred in the entry of the decree and that decree is reversed and the cause remanded, with directions to dismiss the bill of complaint for want of equity.

Reversed and remanded with directions.


text:
    George W. Davis, Appellant, v. Ella Ferguson, T. A. Ferguson, W. S. Van Doren, and John I. Groves, Appellees.
    Gen. No. 8,121.
    1. Libel and slander — what will not charge sheriff with failing to pursue felons. A publication concerning a candidate for sheriff that his prior record as sheriff was almost blank, that the crooks were for him, and that he could not cope with the crooks, does not charge that he ever failed promptly to pursue felons when he had knowledge that a felony had been committed.
    2. Libel and slander — what will not charge sheriff with failing to conserve the peace. A publication concerning a candidate for sheriff that his prior record as sheriff was almost blank and that he did not know how to conduct his office, does not charge that he failed to- keep the peace in regard to offenses occurring “in view” and does not bring him into public contempt on that account.
    3. Libel and slander — what will not charge sheriff with failing to enforce Prohibition Act. A publication concerning a candidate for sheriff that his prior record for sheriff was almost a blank and that he could not cope with the crooks, does not charge an actual violation of his duty under the Prohibition Act, the section concerning which in Cahill’s St. ch. 43, ¶ 43, makes a literal following of it so difficult that the publication raised a political rather than a legal question.
    4. Libel and slander — charge of failure to enforce law. On admission by demurrer to a complaint for libel that a sheriff had conducted the affairs of his office in a fearless manner, held not libelous per se to say that his record for enforcement of the Prohibition Act in its requirements for liquor searches on suspicion was almost a blank and that he had done almost nothing to enforce the law, in view of all the allegations of the declaration.
    5. Libel and slander — charge of candidate being supported’ by various criminals. On admission by demurrer to a complaint for libel that a sheriff had conducted the affairs of his office in a fearless manner, and in view of the sympathy and association among thieves, burglars and bank robbers on the one hand, and gamblers and liquor law violators on the other, many of whom follow both occupations, held not libel per se to publish that they were all supporting the sheriff as candidate.
    6. Libel and slander — publishing support of candidate by law breakers. On admission by demurrer to a complaint for libel that a sheriff had conducted the affairs of his office in a fearless manner, held not libel per se to charge that thieves, burglars, bank robbers, gamblers and liquor law violators were supporting the sheriff as a candidate, in view of the legal presumption that the support was due to preference and not to a criminal agreement.
    7. Libel and slander — improper performance of official duties. A charge that a public official did not properly enforce the duties of his office is not libelous per se unless such actions on his part were charged to be done with dishonest purposes.
    8. Libel and slander — publishing sheriff’s record on prohibition enforcement as not libel per se. It is not libel per se in a campaign for the office of sheriff to discuss the record of a candidate during his prior terms as sheriff in regard to his enforcement of the Prohibition Act.
    9. Libel and slander — right to defend for publication concerning sheriff’s prohibition enforcement. A publication concerning the record for prohibition enforcement of a candidate for sheriff during his prior-terms in that office is not malicious if made to inform the public of what he stands for, and may be defended, if true and published with good motives and for justifiable ends.
    10. Libel and slander — when question of damage political. A publication concerning the prior record in office of a candidate for sheriff, which is not libelous per se, gives rise only, as regards any damage he may have suffered, to a political question which the courts will not consider.
    11. Appeal and error — moot question in pleading. After a count in plaintiff’s declaration for libel was held demurrable, the question of whether the plea, to that count was properly framed becomes academic and will not be passed upon.
    Appeal by plaintiff from the Circuit Court of Champaign county; the Hon. Franklin H. Boggs, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 31, 1927.
    Dobbins & Dobbins and Clark & Noel, for appellant.
    Acton, Acton & Snyder, Harry A. Barr and Roger F. Little, for appellees.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

This is an action for libel, based on three separate publications. The declaration consists of three counts, to the second and third of which demurrers were sustained. Appellees filed the general issue and two special pleas. A demurrer was sustained to the second special plea, overruled as to the first and the general issue ivas withdrawn. Appellant (plaintiff) elected to abide by his demurrer to the first special plea and judgment was entered thereon, barring the action. Appellant has appealed and assigns as error the overruling of his demurrer to the first special plea and the sustaining of appellees’ demurrer to the second and third counts of the declaration. The declaration averred in each count that before the several grievances, etc., the appellant was a person of good name, credit and reputation and deservedly enjoyed the esteem and good opinion of his neighbors and other worthy citizens of this State; that for the period of four years ending on the first Monday in December, 1914, and also for the period of four years commencing on the first Monday in December, 1918, and ending on the first Monday in December, 1922, appellant had held and executed the office of sheriff in and for the county of Champaign and state aforesaid and as such sheriff during both of said terms did faithfully execute the duties of said office of sheriff, and faithfully enforced the laws of the State of Illinois, and always performed the duties of his said office as sheriff in a fearless and straightforward manner and was deservedly held in good credit and esteem by his neighbors, etc., and by those who were familiar with the character of appellant and with his conduct of the said office, and that he had never been guilty of any conduct by which it could be rightfully said that his record was a blank, nor that appellant had held said office and done nothing, nor that it could rightfully be said that appellant was courting and trying to receive the support of crooks and of persons who were crooks and criminals, and that while appellant was sheriff the crooks and criminals would conduct the business of said county.

Said counts further averred that on, to-wit, the 28th day of October, 1926, at, etc., appellant was a public candidate for election to the office of sheriff of said county, for the term commencing, the first Monday in December, 1926, and that appellees, well knowing the premises, etc., did wickedly and maliciously compose and publish of and concerning appellant the false, scandalous, malicious, defamatory and libelous matters following, etc.

We shall set out the articles charged as libelous substantially as alleged in the first, second and third counts, the matter in the second and third counts being preceded by some other charges by way of inducement not of importance in this recital:

First Count. “Sheriff Gray (meaning then sheriff of said county) has made the greatest record in Illinois in catching thieves and burglars and bank robbers and has arrested over 700 gamblers and liquor law violators, with 450 convictions and over 100 cases pending, and over $45,000 in fines and costs assessed against these crooks. Sheriff Davis’ (meaning this plaintiff’s) record, except where he (meaning the plaintiff) did not get the evidence, is almost blank. It is no wonder these crooks are for him (meaning the plaintiff) and boast that they (meaning the thieves, burglars, bank robbers, gamblers and liquor law violators) will run this county for the next four years. The sheriff is supposed to be our law enforcement officer. Why should we (meaning the legal voters of the said county of Champaign) elect and pay a salary for an officer who does nothing? He (meaning the plaintiff) has had this office twice and tried to elect his son and now wants it again. What has he (meaning the plaintiff) done for the public in his (meaning the plaintiff) two terms in office that he (meaning the plaintiff) should expect to feed at the public crib all the time? It would pay the county thousands of dollars to pay him (meaning the plaintiff) a salary and send him (meaning the plaintiff) away and hire a man to do what should be done.”
Amended Second Count. “ELECT ULITSCH (meaning one of the opposing candidates) SHERIFF — SHERIFF’S (meaning the plaintiff’s) RECORD, TWO TERMS (meaning the two terms served by this plaintiff as sheriff.) John Gray’s (meaning the then sheriff’s of said county) record: — Over 700 gamblers and liquor law violators arrested. Over 450 convictions. Over $45,000 in fines and costs assessed and over 100 cases pending. The greatest record in Illinois in all lines.
“Geo. Davis’s (meaning the plaintiff’s) record:— Except cases where he did not get the evidence his (meaning the plaintiff’s) record is almost blank.
“It is no wonder the crooks are boasting that they will run this county the next four years (meaning the so-called crooks would conduct the office of sheriff if this plaintiff was elected). This mild little man (meaning the plaintiff) could not, if he (meaning the plaintiff) would, cope with this gang, for after getting their support (meaning the support of the gamblers, liquor law violators and other crooks and criminals) they (meaning the same) would kill him (meaning the plaintiff) if he (meaning the plaintiff) dared bother them (meaning the crooks, gamblers, liquor law violators and other criminals). With crocodile tears they (meaning the same) now ask honest voters to vote a straight republican ticket when four years ago they (meaning the same) knifed Gray to their limit. Shall we turn this county over to them? (Meaning that should this plaintiff be elected to the office of sheriff, that the duties of said office would be controlled by gamblers, liquor law violators and other criminals.)
“Edward Ulitsch, who has worked four years with Gray and O’Neil and has their confidence, and has helped make such a splendid record, can be elected sheriff and this record will be continued, if those who voted for O’Neil in the primary will now vote for Ulitsch next Tuesday.
“For the honor of the county we urge this to be done for it will not do to turn this county with its great University over to the crooks (meaning and intending that it would not do to elect this plaintiff to the office of sheriff, and that if they would do that, that the business of the sheriff’s office in said county would be controlled by crooks.)
“VOTE FIRST FOR ULITSCH! IT IS THE MOST IMPORTANT THING IN THIS ELECTION. —Publicity Committee, Law and Order League, Mrs. T. A. Ferguson, Sec.”
Third Count.
“TO CHAMPAIGN COUNTY VOTERS
“Our present sheriff force has caught more thieves, burglars, and bank robbers than ever before and has also had $40,000' in fines and costs assessed against bootleggers and gamblers at a cost to the county of less than $5,000. This record proves that former sheriffs (meaning this plaintiff and. others who prior to this plaintiff had held said office of sheriff in said county) did not care, did not know how, or were afraid to molest the crooks (meaning the said thieves, burglars, bank robbers, bootleggers and gamblers theretofore referred to in said statement). This also proves that such a sheriff force is worth $35,000 more to the tax payers than one (meaning thereby a sheriff force under this plaintiff as sheriff) which serves only papers and lets the crooks alone (meaning and intending thereby to charge that this plaintiff, if elected as sheriff, would let the crooks alone; and meaning by said crooks, the said thieves, burglars, bank robbers, bootleggers and gamblers therein before referred to in said article.) ’ ’

None of the counts averred any special damage resulting to appellant. Appellee’s plea to the first count in the declaration was a plea of justification of the truth of the charge. It averred that appellees were citizens and residents of said county and with other citizens, etc., were associated together as a voluntary association'known as “The Law and Order League” and that some of said appellees were officers in said-league, and that the purpose of said league was to secure the election of a man for sheriff of said county who would actively seek evidence against those violating the law in said county in reference to the unlawful sale and possession of intoxicating liquors and the statute in reference to gambling, and who, by thus securing the information of such law violations, would enable the prosecution of such violators of the law and thereby free the county of gambling and liquor violators. The plea further sets out the location of the State University at Champaign, with its large body of students, and the public necessity or moral obligation to protect that body of students, as well as the citizens of the county, from intoxicating liquors and vice. The plea avers the election and the active candidacy of appellant for the office of sheriff. The plea denied the innuendoes set out in count one of the declaration, and denied that it was charged that “crooks and criminals would control said plaintiff while in office, ’ ’ etc.; or that it was intended to charge that appellant, if elected, would do nothing in office; or that the record of said appellant in said office was a blank ; or that said appellant did nothing to enforce the laws of the State. The plea denied that it was the intention, by said publication, to persuade the voters to believe that appellant had used no efforts whatsoever to apprehend thieves, burglars, robbers, and other criminals, or that appellant, if elected, would do nothing to catch thieves, burglars or bank robbers, or to arrest gamblers or law violators. The plea further avers:

“And the defendants further aver that with good motives and for justifiable ends and without malice they did truthfully publish in said article in commenting on the fitness and qualifications of the plaintiff for the said office of Sheriff, as they rightfully and truthfully could do, and had the right to do in said publication, the matters and things set forth in said count of plaintiff’s declaration, to-wit — ■
“ ‘Sheriff Gray has arrested over 700 gamblers and liquor law violators with 450 convictions and over 100 cases pending and over $45,000 in fines and costs assessed against these crooks.
“ ‘Sheriff Davis’ record except where he did not get the evidence is almost blank. It is no wonder these crooks are for him and boast that they will run this county for the next four years. ’
“And the defendants deny that the meaning and intention of the said publication, to-wit, ‘It is no wonder these crooks are for him, and boast that they will run this county for the next four years, ’ was that the thieves, burglars and bank robbers will run this county for the next four years.
“And the defendants further aver that said publication was made in entire good faith, and for the purpose of advising the voters as to the fitness and qualifications of said respective candidates for said office of Sheriff, so that they could intelligently exercise their elective franchise, and was made with good motives and justifiable ends and without any malice whatsoever against the plaintiff.”

Appellant filed a general and special demurrer to this plea, which the court overruled. It is strenuously insisted by appellant that the plea is insufficient, because it does not set forth the specific facts upon which the statements are based, but merely avers that the statements are true — citing authorities.

Appellees moved the court to carry this demurrer back to the first count in the declaration, which motion was denied. Appellant has assigned error upon the demurrer being sustained to the second and third counts. We consider these first, and the question goes to the entire charge. Appellant insists that the charge in each count is libelous per se, citing: People v. Strauch, 247 Ill. 220, 228, in which case the charge was that said Stransky had prostituted his office for private interests and political purposes, for spite; “that he was in collusion with violators of the liquor law; that he was actuated by improper motives with reference to the bridge trust; that there was no doubt but that the bridge trust had proven a fat goose for someone,” etc., plainly charging the commission of a crime. Ogren v. Rockford Star Printing Co., 288 Ill. 405, 413, in which case plaintiff alleged libel for publications during the time he was a candidate for mayor of the City of Rockford, and where the court said: “By charging him with making the two speeches or alleged statements at the council meeting and at the theater building, the second article in substance charged that he himself had declared himself as a man who would by his official acts be opposed to and decide against corporations, right or wrong, upon all questions; that he was in favor of a division of profits already made and without further work, — a rebel against the present system and in favor of blowing up tenement houses, etc. There can be no question that such charges tend to impeach the honesty, integrity and reputation of' plaintiff and to expose him' to public hatred, contempt and ridicule.” Cerveny v. Chicago Daily News Co., 139 Ill. 345, 354, where it is held: “And it would seem so apparent that an individual may be brought into hatred, contempt or ridicule, within the meaning of the law, by professing vicious, degrading or absurd principles and especially by professing them and also confederating with others alike professing them, to give them effect, that it can need no discussion.” People v. Fuller, 238 Ill. 116, 124, in which case the court held: “Under the statute any malicious defamation tending to impeach the honesty, integrity, virtue or reputation of another, and thereby to expose him to public hatred, contempt, ridicule or financial injury, is a libel. It is not necessary that it should amount to a charge of crime. The charge is that Merriman filched large sums by illegally taking, in three years, $802.30 to which he was not entitled. The established rule in this State is that the words in an action of libel must be taken in the sense which the readers of common and reasonable understanding would ascribe to them, — that is, in their ordinary or common acceptation. * * * The charge against a public officer that by breach of trust or wrongfully he has taken from the public treasury money to which he was not entitled certainly tends to impeach his honesty and integrity and to expose him to public hatred and contempt, whether it amounts to a charge of statutory crime or not. ’ ’

It may be conceded that the publications do not charge appellant with the commission of any crime, nor with the expression of principles subversive of government. Do the publications tend to impeach the honesty, integrity, virtue or reputation of appellant and thereby expose him to public hatred, contempt, ridicule or financial injury? No financial injury is charged and we shall examine the charges specifically as they may affect appellant’s reputation for honesty, integrity or virtue: In the first count it is charged: “Sheriff Davis’ record, except where he did not get the evidence, is almost blank.”- This is somewhat qualified by being in comparison with the record of Sheriff Gray, who had made “the greatest record in Illinois” catching thieves, burglars and bank robbers, arresting over 700 gamblers and liquor law violators, “with 450 convictions and 100 cases pending,” and with $45,000 fines and costs assessed against these crooks; by crooks, evidently meaning the thieves, burglars, bank robbers, gamblers and liquor law violators who would properly come under the definition of a “crook.” Then the publication proceeds: “It is no wonder these crooks are for him, and boast that they will run this county for the next four years.” The language is plain and unambiguous and needs no innuendo to interpret it. It was made in a political campaign and its meaning must be interpreted by the court from the language used in the sense it conveys to 'the mass of voters in the county. The publication proceeds: “The sheriff is supposed to be our law enforcement officer. Why should we elect and pay a salary for an officer who does nothing? He has had this office twice and tried to elect his son and now wants it again. What has he done for the public in his two terms in office that he should expect to feed at the public crib all the time? It would pay the county thousands of dollars to pay him a salary and send him away and hire a man to do what should be done.”

From this publication appellant assumes that he is charged with doing nothing while he was sheriff, not even performing his official duties, and that the charge is that he will permit, by some voluntary act, his office to be controlled by crooks and thieves. We do not so understand the language used. The publication was that the thieves and crooks boasted that they would run the county not the office of sheriff. The publication is modified by comparing the records of Sheriff Gray and appellant as to the law enforcement by the sheriff, and the clause in the publication — “The sheriff is supposed to be our law enforcement officer.” We think the publication is fairly susceptible to the construction that it is speaking only of appellant’s duties in relation to law enforcement.

The article in the second count is signed by the Publicity Committee of The Law and Order League. There is not much public ignorance as to the functions of leagues of that kind. Speaking of appellant the article says: “It is no wonder these crooks are for him,” Would the purport of the publication have been any differently understood if it had stated: “It is no wonder these crooks are against Sheriff Gray or any one like him?” The real question is, what are the legal duties of the sheriff as to law enforcement; and by charging a sheriff with having a record “almost blank” and “doing nothing” as to law enforcement, what position does that place the officer before the law, and to what extent does it bring him into public ridicule and contempt for violating the law? At first blush, it seems to be a legal question altogether and by a full examination of the statute it may have its political aspects. Section 678 of chapter 38, Cahill’s St. ch. 38, ¶ 678, provides: “When the fact that a felony has been committed shall come to the knowledge of any sheriff, coroner or constable, fresh pursuit shall be forthwith made after every person guilty thereof, by such sheriff, coroner, constable and all other persons who shall be by any of them commanded or summoned for that purpose; every such officer who shall not do his duty in the premises shall be punished by fine in a sum not exceeding $100, or imprisoned not exceeding three months. ’ ’

Section 17 of chapter 125, Cahill’s St. ch. 125, ¶ 17, provides: “Each sheriff shall be conservator of the peace in his county, and shall keep the same, suppress riots, routs, affrays, fighting, breaches of the peace, and prevent crime; and may arrest offenders on view, and cause them to be brought before proper magistrates for trial or examination.”

Section 42 of the Prohibition Act, Cahill’s St. ch. 43, ¶ 43, provides: “It shall be the duty of all municipal, county, and State officials .to co-operate in the enforcement of'this Act.

“If any sheriff, deputy sheriff, chief of police, marshal, policeman, constable or other peace officer shall have knowledge, information or suspicion of any violation of any provision of this Act, he shall diligently investigate and secure evidence of the same and shall, before the proper officer, make and sign complaint against the offending person, anything in the ordinance or by-laws of any municipality to the contrary notwithstanding. ’ ’ ,

Under the first section cited: “When the fact that a felony has been committed shall come to the knowledge of any sheriff, etc.,” we find nothing in any of the publications warranting the inference that appellant has been derelict in his official duty. No intimation is made that appellant has not always acted promptly when he had knowledge that a felony had been committed.

The second section relates to riots,' routs, affrays, fighting, breaches of the peace and crimes of that nature committed within “view,” and in regard to this duty appellant may have been as efficient as any sheriff in the state, for all that appears in the declaration. That appellant had not caught as many thieves, burglars and bank robbers as the sheriff who made the greatest record in Illinois in that line, because he, appellant, “did not know how,” neither charges him with an offense, a failure to perform his official duty, nor brings him into public contempt or ridicule, and should not wound his official pride. It is plain that the publications in question were intended to impress the voters with appellant’s, lack of vigor and enthusiasm, if not his failure of duty, to enforce the Prohibition Act under section 42, Cahill’s St. ch. 43, ¶ 43 supra. In that respect he was entitled to the co-operation, in the enforcement of the act, of all municipal, county and state officials in Champaign county. That section provides: “If any sheriff, deputy sheriff, chief of police, marshal, policeman, constable or other peace officer shall have knowledge, information or suspicion of any violation of the act, he shall diligently investigate and secure evidence of the same and shall, before the proper officer, make and sign complaint against the offending person.”

The Supreme Court has never passed upon the constitutionality of all of the provisions in this section, and the question is not raised in this court, and this court would have no power, if raised, to declare any of the provisions of the section void.- The section, therefore, as it applies to this case must be held valid and to mean just what its languages recites. It follows that it is the duty of the sheriff to diligently investigate and secure evidence whenever he has a suspicion that any provision of the Act has been violated. About this he has no discretion. The evidence must be secured and the sheriff “shall make complaint,” the form of which is prescribed under oath in the statute. Drom the rigor of this section and the difficulty in following its language literally, there may have been some otherwise good sheriffs who have lost heart and lacked vigor and enthusiasm in the enforcement of the law, and abandoned such enforcement entirely where dependent upon their information or suspicion as a guide. The merits or demerits of what a sheriff can accomplish in the enforcement of law by following the provisions of the act, is not a proper subject for consideration by this court, but is a political question to which the publications in question were directed.

In considering each count in the declaration, upon demurrer, it must be considered that the allegation of appellant that he faithfully executed the duties of the' office of sheriff during his two terms, and performed such duties in a fearless and straightforward manner, was true and admitted by the demurrer to be true. To say that appellant’s record in the enforcement of law under this section was almost a blank in comparison with Gray’s, is not libelous per se. To say that appellant had done nothing in the enforcement of law, under this section, in view of all the allegations in the declaration, is not libelous per se. In view of the sympathy, relationship and association among thieves, burglars and bank robbers on the one hand, and gambiers and liquor law violators on the other, many of whom follow both occupations, it was not libelous per se to join the various law breakers in the publications set out in the declaration. It was not libelous per se to charge that thieves, burglars, bank robbers, gamblers and liquor law violators were supporting appellant for sheriff and boasting that they would run said county for the next four years, because the law will presume that their support was induced wholly by their preference for appellant over any other candidate ; and the boast that they will run said county may refer entirely to politics or some other subject, and does not tend to show any criminal connection with appellant or impugn his honesty or integrity in any manner. It has no relation to the office of sheriff. It has been held that, “The conduct charged must be of such a nature as to reflect upon the character and integrity of the plaintiff and to subject him to a loss of public confidence and respect; and a writing, although charging wrongful conduct or dereliction of duty, is not libelous per se, within the meaning of the rule, unless it imputes a dishonest or fraudulent motive or interest.” 36 Corpus Juris. 1168. Inasmuch as the sheriff is the chief law enforcement officer of the county, aid it is made his duty by law, upon knowledge or information, to investigate, procure evidence and prosecute, under the Prohibition Act, it cannot be libel per se in a political campaign, for the office of sheriff, to discuss his record in regard to law enforcement. If the matter is published for the purpose of informing the public of the things the candidate stands for, and of his character and history, then it would not be .a malicious publication, and if it is not a malicious publication it can be defended against if the matter published is true, and done with good motives and for justifiable ends. Ogren v. Rockford Star Printing Co., 237 Ill. App. 349; 357.

It is held in Townsend on Slander and Libel (4th ed. sec. 146); “The language charged to be libelous was not actionable per se. It has been held that in order to constitute language libelous per se, it must be either such as necessarily, in fact, or by presumption of evidence, occasions damage to him of whose affairs it is spoken. Language which, however, does not, as a necessary consequence, occasion damage to the party published, is not per se libelous and in such a case a right of action exists only when, as a necessary and proximate consequence of the publication, special damage ensued to the party published.”

In the view we take of this case, it would be a political question to determine whether appellant was damaged or benefited by the publication of the articles, and that neither of said articles contained matter which was libelous per se, and that the court, therefore, should have carried the demurrer to the plea back to the first count in the declaration and sustained it. Much that has been said as to the first count in the declaration could be reiterated as to the second and third counts. The court did not err in sustaining appellees’ demurrer to the second and third counts in the declaration.

Appellant’s demurrer to the first additional plea remains to be considered. It is contended by appellant that it is the duty of the appellees, under a plea, to set forth facts showing the truth of the matter as averred in the declaration, and not to simply deny the innuendos of the declaration; that the plea should set forth the specific facts upon which the statements are based, and that it is not sufficient to simply aver that the statements are true and that the plea is defective. In the view we take of the case the question is practically academic. Inasmuch as we have held appellant’s first count in the declaration subject to demurrer, we have no occasion to pass upon the sufficiency of the plea to that count.

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

Affirmed.


author: Mr. Justice Eldredge

text:
    J. F. Humphreys & Company, Appellee, v. City of Bloomington, Appellant.
    Gen. No. 8,041.
    1. Damages — $17,000 as not excessive for depredation in value resulting from viaduct. In an action for damages resulting from the construction of a viaduct from thirteen to fifteen feet high in front of a building used for a warehouse and manufactory and worth prior thereto $180,000, an award of $17,000 for depreciation in value held not excessive.
    2. Instructions — refusing one covered by another. The refusal to give a proper instruction is not reversible error where the court has given for the same party an instruction covering the same ground.
    3. Instructions — disregarding testimony of witnesses. An instruction for 'the plaintiff that if the jury believe from the entire testimony that any witness has magnified or exaggerated the damages, if any, to the premises in question, on account of his interest in the suit, in his prejudice, or want of knowledge or experience or truthfulness, then the jury has the right to disregard the evidence of such witness in so far as the same is unjustly magnified or increased as to the damages, if any, to the property of the plaintiff, is objectionable as improperly authorizing the rejection of testimony and, also, as limiting the rejection only to the witnesses of one party.
    4. Witnesses — requirements for impeaching. Before a witness can be impeached by showing that he has made oral statements out of court in conflict with his testimony given in the ease, he must have had his attention called, during his examination, to the alleged statements, and to the time, place and persons involved in the supposed contradiction.
    5. Trial — right to jury view of damaged premises. In an action • at law to recover damages for depreciation in value of property from the building of a viaduct in front of it., the court has the discretion to permit the jury to view the premises if the nature of the case makes that important.
    6. Trial — when court may refuse jury view of premises. A court did not abuse its discretion in refusing the motion of a defendant to a common-law action for damages for building a viaduct in front of plaintiff’s property, that the jury view the premises, in view of the fact that most of the jurors were familiar with the premises and that a number of photographs of the premises were in evidence.

      Appeal by defendant from the Circuit Court of McLean county; the Hon. Edward Barry, Judge, presiding.
    Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed October 31, 1927.
    Richard M. O’Connell, for appellant.
    Stone & Taylor, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

J. F. Humphreys & Company, appellee, recovered a judgment against the city of Bloomington, appellant, in the court below for $17,000 damages in an action on the case, to reverse which judgment this appeal is prosecuted.

The declaration, in substance, charges that on January 1, 1924, plaintiff (appellee) was the owner of lots 1 and 2, being the whole of Harber Brothers Company’s subdivision of the north end of block 5 of Miller, Foster and Others’ addition to the town, now city of Bloomington, that said premises abutted on a certain street in said city known as South Main street, for an approximate distance of 164 feet; that upon said premises on said date there was a certain brick building, five stories in height, and being then used by said plaintiff in conducting a wholesale grocery business and for manufacturing grocery supplies; that said building abutted on Main street for an approximate distance of 92 feet on the south end of said premises; that the grade of said South Main street had long since been established and that said building had been erected with reference to the grade of said street; that said defendant, having control of said street, erected, or caused to be erected, upon that portion of South Main street upon which said premises abuts, on, to-wit: January 1, 1924, a certain structure of steel and concrete, known as a viaduct, together with approaches thereto, said structure being erected high above the level and grade of said street as it had existed prior thereto and permanently elevated and greatly changed the grade of the major portion of said street, by and in front of plaintiff’s premises, and thereby greatly reduced the facilities of egress and ingress to said premises from said street, as prior thereto for a long-period of time had existed, and had made the access of plaintiff’s building’s and property, and the egress therefrom, defective and dangerous, and thereby had-greatly damaged the property of plaintiff and that it had been rendered unsightly and shut off from light and the free circulation of air, and by means of the erection of said viaduct the said property of plaintiff has been greatly injured and permanently damaged in its market value.

The only plea filed was that of the general issue and it is conceded by appellant, that the city of Blooming-ton is liable for any damages that appellee may have suffered by the erection of said viaduct, and it is further conceded that appellee is entitled to damages in some amount, but a reversal of the judgment is sought upon the grounds, (1) that the damages assessed by the jury are excessive and contrary to the weight of the evidence; (2) error in the refusal by the trial court to give certain instructions; (3) error in the refusal of the court to admit certain evidence, and, (4) error in the refusal of the court to grant appellant’s motion to have the jury view the premises.

A short distance west of the premises in question, the tracks of the Big Four and the Nickel Plate Bail-roads run in a northeasterly and southwesterly direction, crossing South Main street. In May, 1925, the Nickel Plate Railroad, under an order of the Illinois Commerce Commission, commenced the construction of the viaduct in question on South Main street over its tracks and those of the Big Four. Railroad. The viaduct was completed in December, 1925. The evidence shows that the height of the viaduct, in front of the building on the premises of appellee, is about thirteen feet at its lowest point and about fifteen feet at its highest point. The viaduct is supported by large pillars and the roadway between the north side of the viaduct and the south side of the sidewalk in front of the building, is approximately twelve and a half feet wide, and this width was procured by cutting away a portion of the sidewalk as it had existed before the viaduct was constructed. It cannot be seriously contended that the means of ingress and egress to and from the premises of appellee have been seriously impaired and the convenience and safety thereof very much reduced. It must be conceded also that the right, which the appellee enjoyed to the free access of light and air has been more or less diminished, especially as to the first two stories of the building. The evidence tends to show that the fair, cash, market value of the premises, before the erection of the viaduct, for the purpose for which it was being used, viz., the carrying on of a wholesale grocery business and the 'manufacturing of grocery supplies, was between $180,000 and $200,000. The witnesses for appellee placed the amount of depreciation in the fair, cash, market value of the premises, by reason of the erection of the viaduct, as between $35,000 and $45,000, while the witnesses for appellant placed such depreciation at between $5,000 and $10,000, and, in view of all the evidence in the case, which we have tried very carefully to consider, the verdict awarding $17,000, as damages, is not excessive.

The trial court refused to give the following instruction, offered by appellant: “The court instructs the jury that the burden of proof in this case is upon the plaintiff, and it is for it to prove its case by a preponderance of the evidence.” This instruction might well have been given, but its refusal is not reversible error for the reason that the court gave an instruction, offered by appellant, in which it is stated, “that the rule requiring the plaintiff to prove its case by the greater weight of the evidence is a substantial rule of law, binding upon the plaintiff in this case, and you have no right as jurors to disregard said rule of law. It is your duty as jurors to enforce said rule of law in this case, the same as each and every rule of law that the Court gives you in these instructions.” With the latter instruction given, the jury could not have been misled as to which party had the burden of proof.

The court also refused to give to the jury the following instruction: “You are instructed that if you believe from the entire testimony that any witness has magnified or exaggerated the damages, if any, to the premises in question, on account of his interest in the suit, or his prejudice, or want of knowledge or experience or truthfulness, then you have a right, and it is your duty, to disregard the evidence of such witness in so far as the same is unjustly magnified or unjustly increased, as to the damages, if any, to the property of the plaintiff. ” It is very earnestly insisted by counsel for appellant, that this instruction was proper and has received the sanction of the Supreme Court, and the following cases are cited in support of this contention: Kiernan v. Chicago, S. F. & C. Ry. Co., 123 Ill. 188; Goss Printing Press Co. v. Lempke, 191 Ill. 199; Bradley Mfg. Co. v. Chicago & S. Traction Co., 229 Ill. 170; Chicago & W. I. R. Co. v. Heidenreich, 254 Ill. 231.

In the Kiernan case, supra, the court held' that the criticism of a similar instruction, that it told the jurors that they might arbitrarily disregard the testimony of unimpeached witnesses was not well taken. No other fault appears to have been urged to the instruction or brought to the attention of the court and it was apparently approved. In the Goss Printing Press Co. case, supra, no such instruction as that now under consideration, was passed upon, but if it be taken that the instruction which was considered in that case involved a like principle of law, which we do not concede, it at least had the merit of applying to all witnesses in the case equally, and was not limited to the witnesses of one party only. We do not consider this, case as supporting appellant’s contention, not only because of the dissimilarity of the instructions, but also for the reason last mentioned. A similar instruction was passed upon in the Bradley Mfg. Co., case, supra, and the court, after stating that a like instruction was approved in the Kiernan and Goss Printing Co. cases, adds, “What was said in the Kiernan case applies with equal force here and needs not be repeated. We do not think the giving of appellee’s fifteenth instruction constituted reversible error.”

In the case of Herrin & Southern R. Co. v. Nolte, 243 Ill. 594, this same instruction was more extensively considered, and the court there held: ‘ ‘ The court gave an instruction (No. 11) at the instance of the defendant which ought not to have been given. It was an argument for the defendant, and advised the jury that if they believed any witness had under-estimated the value of the land taken or the damages to land not taken, on account of interest, prejudice, want of knowledge or experience or truthfulness, they had the right to disregard the evidence of such witness in so far as the same was unjustly minified or unjustly under-estimated, either as to the value of the land taken or damages to land not taken. The interest, prejudice or want of knowledge, experience or truthfulness of any witness for either party would be proper for consideration by the jury in weighing his testimony and it would not be improper to give a cautionary instruction of that kind, but a court ought, when advising the jury on that subject, at least to apply the rules to witnesses on both sides. The instruction was not only bad in authorizing the jury to disregard the testimony of witnesses, but it was applied only to witnesses for the petitioner. The testimony of every witness which is not willfully false as to a material matter and without corroboration is entitled to consideration by the jury and is to be weighed and considered.” In the later case of Chicago, O. & P. Ry. Co. v. Rausch, 245 Ill. 477, substantially the same instruction was again considered by the Supreme Court and a still more extensive analysis was made of it, and, in mentioning the-court’s earlier opinion in the Kiernan case, supra, it is said, “We think that view is not accurate.” The instruction is condemned and what was said in regard thereto in the Herrin & Southern Railroad Company case was approved. In the still later case of Chicago & W. I. R. Co. v. Heidenreich, 254 Ill. 231, in passing upon an instruction of the same character it was held: “The court gave the instruction about disregarding the evidence of witnesses so far as such witnesses had magnified or depreciated the value of the property, which was commented upon in Herrin and Southern Railroad Co. v. Nolte, 243 Ill. 594, and Chicago, Ottawa and Peoria Railway Co. v. Rausch, 245 id. 477. It was applied to both parties but was misleading, and practically told the jury to pay no attention to testimony of witnesses whose opinions of value they did not regard as correct.” In view of these later decisions of the Supreme Court it was not error to refuse this instruction.

In the month of April, 1925 the witness Hall, and, three other men, all of them having been hired for that purpose by appellant, made an inspection of appellee’s property. When the witness Hall was on the witness stand, as a witness for appellant, he stated that when he was on the premises in April, 1925, he had a talk with the general manager of appellee. Then he was asked this question, “Will you state what he told you concerning the improvements,” to which an objection was sustained. It is claimed by appellant that the court erred in sustaining this objection on the ground that the general manager of appellee had been a witness for appellee and had testified in regard to the improvements and that appellant had a right to impeach his testimony by showing that he made statements to the witness, contrary to those testified to by him. No offer of proof was made by counsel for appellant and, so far as the court was concerned, there was no reason shown or brought to its knowledge which would make an answer to that question competent. The court could not presume that any conversation the witness might have had with the general manager of appellee would tend to impeach his testimony or would be competent or material to any of the issues in the case. When the general manager testified as a witness in the case, his attention, on cross-examination, was not called to any conversation he had had with the witness Hall, and consequently, no foundation was laid for impeachment. The rule is that before a witness can be impeached by showing that he had made oral statements out of court in conflict with his testimony given in the case, he must have had his attention called, during his examination, to the alleged statements, and also as to the time, place’ and persons involved in the supposed contradiction. Hirsch & Sons Iron & Rail Co. v. Coleman, 227 Ill. 149.

The last error assigned by appellant is that the court erred in overruling its motion for the jury to view the premises. In a condemnation suit, by special provision of the statute, either party has a right to have the jury view the premises sought to be taken or damaged, but this is an ordinary action at law and not a condemnation suit, and in such cases, whether a view of the premises is allowed or not, lies largely in the discretion of the court. A view, under such circumstances, may be permitted by the court in the exercise of its discretion, if, in the nature of the case it becomes important for the jury to view the premises in order to understand the physical situation and properly apply the evidence thereto. Vane v. City of Evanston, 150 Ill. 616; Geo. Hegan v. Union El. R. Co., 258 Ill. 352; Rich v. City of Chicago, 187 Ill. 396. The case of Springer v. City of Chicago, 135 Ill. 552, involved the same cause of action as in the case at bar, and in discussing the right of the trial court to order a view, it was held, “When a view of real estate will aid the jury in reaching a conclusion, it is within the discretion of the court to permit it.” The case of Osgood v. City of Chicago, 154 Ill. 194, also holds that the trial court may permit a view of the premises in this character of cases in its discretion. While it is undoubtedly true that the court could have allowed the jury to view the premises, yet such action was within the court’s sound discretion. The trial court, in passing upon this motion stated: “Most of the jurors answered on their voir dire that they were familiar with the location and surroundings of the viaduct; and because of that and the number of photographs offered in evidence, the court thinks it not necessary to have them view the premises.” Under these circumstances there was no abuse of discretion by the court in denying the motion.

There is no reversible error in the record and the judgment of the circuit court is affirmed.

Judgment affirmed.