author: Mr. Presiding Justice Gridley

text:
    W. E. Bayfield, Defendant in Error, v. W. E. Defenbacher, Plaintiff in Error.
    Gen. No. 35,027.

      Opinion filed May 17, 1932.
    Rehearing denied May 31, 1932.
    Benjamin Levering and Elmer H. Heitmann, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This writ of error is sued out to reverse a judgment of the municipal court rendered February 15, 1930, against defendant for $5,000, in an action of the 1st class in assumpsit for money had and received. The judgment was entered after a trial without a jury— the court finding the issues against defendant and assessing plaintiff’s damages at $5,000. No appearance or brief has here been filed by plaintiff.

The action was commenced on January 31, 1927. Defendant moved to strike from the files plaintiff’s original statement of claim, but the motion was denied. Thereupon defendant filed an affidavit of merits which, on plaintiff’s motion in the natur'e of a demurrer, was stricken, and, defendant having elected to stand by his pleading, judgment by default was entered against him for $5,000, and he appealed to this court. On January 31, 1928, having considered the record and the briefs and arguments of respective counsel, we reversed that judgment and remanded the cause. (Bayfield v. Defenbacher, 247 Ill. App. 633.) At the conclusion of our opinion (not published) we said:

“Inasmuch as defendant has raised certain issues by his pleading proper for determination if the statement of claim is to stand, we merely decide that such statement is not in such, form as precluded defendant from pleading as one of said issues that the money was paid as consideration for an option to purchase said stock and was to be applied on the purchase price only in case the option was accepted. In the form in which plaintiff has pleaded his cause of action we think that issue was properly taken.

“Plaintiff’s entire claim rests upon his construction of said agreement without properly presenting the same for construction, and the defense evidently is one based upon a different construction or different state of facts. In other words, we think it was error to enter judgment as by default, and that the case should either be tried upon the issues the parties tried to raise or on reformed pleadings properly presenting them. No one would undertake to say that plaintiff’s pleading would stand on demurrer under common law practice, and, whether under the liberal form of pleadings in the municipal court it may stand, it accords more with justice and the equitable form of action of money had and received that the issues be so formed as to present either- a clear question of law or plain issuable questions of fact.”

After the cause was re-docketed in the municipal court, plaintiff obtained leave to file, and filed on March 3, 1928, the following amended statement of claim:

“Plaintiff’s claim is for the sum of $5,000 had and received by defendant for the use of plaintiff and due to plaintiff under and by virtue of a certain instrument in writing signed by defendant, as follows:

“ ‘Executive Office The Virginia Hotel Chicago.

W. E. Defenbaeher, •

President. November 15, 1924.

This agreement made and entered into between W. E. Schofield, representing W. E. Bayfield and W. E. Defenbaeher on the 15th day of November, 1924.

W. E. Defenbaeher agrees to sell all of the Capital Stock of The Virginia Hotel Company to W. E. Bay-field for $160,000, $85,000 of this amount to be paid in cash and the balance — after assuming $50,000 loan at The Lake Shore Trust and Savings Bank — to be paid for at the rate of $1,000 per month, beginning sixty (60) days after December 1, 1924.

Inventories of reserve supplies on hand to be paid for by W. E. Bayfield at cost to The Virginia Hotel. ■

W. E. Defenbaeher hereby acknowledges receipt of a check for $5,000 on purchase price.

Possession to be given W. E. Bayfield on December 1, 1924.

(Signed) W. E. Defenbaeher,

W. E. Bayfield,

by W. E. Schofield, Agent.

Witness:

Blanche A. G-agnon.’

“Plaintiff alleges that there was no consideration for the payment of said sum of $5,000, so had and received by defendant for the use of plaintiff, and no agreement in reference thereto, other than that expressed and set forth in the foregoing instrument herein sued upon; that plaintiff thereafter elected not to purchase the Capital Stock in said agreement in writing described, and on January 20, 1927, made formal demand of defendant for the return of said sum of $5,000; but defendant refused to return the same or any part thereof, and still retains all of said sum.

“Wherefore plaintiff sues for said sum of $5,000 with interest thereon at five per cent per annum from said January 20,1927.”

Accompanying plaintiff’s statement of claim is an affidavit in the usual form, alleging that there is due from defendant said sum and interest. Subsequently defendant’s motion to strike the statement of claim was denied and defendant excepted. We are of the opinion that the court did not err in the ruling.

On June 30, 1928, defendant filed an affidavit of merits, consisting of six paragraphs. Subsequently, on plaintiff’s written motion to strike the affidavit, the court allowed the motion as to paragraphs 1, 2, 4, 5 and 6, but ordered that paragraph 3 of said affidavit “be allowed to stand as and for defendant’s affidavit of merits,” and defendant excepted. We are of the opinion, as to said five stricken paragraphs, that the ruling was correct. The paragraphs only alleged conclusions of law and did not present any issuable questions of fact. The 3rd paragraph in said affidavit of merits is in substance as follows:

That there was a valuable consideration moving . from defendant to plaintiff for the payment of said sum of $5,000; that, at and prior to the execution and delivery of said instrument in writing of November 15, 1924, said sum was paid by plaintiff to defendant “for and in consideration of the giving and selling by defendant to plaintiff, at the latter’s request, of the right to purchase of defendant” (in other words of an option to purchase) “all of the capital stock of the Virginia Hotel Co. for $160,000, as follows: $85,000 in cash, and $50,000, by assuming to pay said mentioned loan of $50,000, . . . and $25,000, — the last mentioned sum to be paid at the rate of $1,000 per month, beginning sixty days after December 1, 1924; and that, in the event plaintiff consummated said purchase of said stock, the said $5,000 was to be applied upon the purchase price of said stock to be paid by plaintiff, and that the possession of the Virginia Hotel, as the property of said hotel company, was to be given to plaintiff on December 1, 1924; that defendant, since giving and selling said right to plaintiff, has not at any time withdrawn or impaired said right; that at the time defendant gave and sold said right, plaintiff accepted the same and all the benefits thereof, and defendant at that time, and from thence hitherto, was and is ready, willing and able to make said sale to plaintiff; and that said instrument in writing was signed and delivered by the parties thereto to evidence the said transaction between plaintiff and defendant and no other transaction.”

The bill of exceptions discloses that upon the trial had in February, 1930, plaintiff introduced in evidence the instrument in writing of November 15, 1924, and also, over objection, a copy (after due notice to produce the original) of a letter written by plaintiff’s agents and attorneys to defendant, dated January 20, 1927, making a formal demand on defendant for the return to plaintiff “of the sum of $5,000 deposited with you on or about December 1, 1924, in connection with the proposed sale by you to Mr. Bayfield of the capital stock of the Virginia Hotel Co.,” and stating that if such demand was not complied with by January 25, 1927, suit would be instituted to recover the amount. It was shown that the letter, properly addressed, had duly been mailed to defendant, and the court properly ruled that it was admissible to show said demand. Thereupon plaintiff rested. Defendant then moved for a finding in his favor, as a matter of law, but the motion was denied. Thereupon defendant’s attorney stated: “We are offering no evidence.” And the motion for a finding in defendant’s favor was renewed and again denied. Thereupon, after arguments were made by the attorneys for the respective parties as to the law applicable, the court entered .the finding and judgment as first above mentioned.

It thus appears from the pleadings and from plaintiff’s evidence that the only issue was one of law, viz., the true, legal construction of said instrument in writing, — it not being questioned that subsequent to its execution plaintiff elected not to purchase the stock mentioned therein. The bill of exceptions further discloses that on defendant’s motion for a new trial defendant’s attorney contended (substantially as is here contended in defendant’s printed brief) that the instrument sued upon is “plainly an option contract,” under which plaintiff, upon demand for the delivery of the stock and defendant’s refusal to deliver it, could have proceeded by bill for specific performance to compel such delivery, and that the contract is not a unilateral one and without consideration as contended by plaintiff. Plaintiff’s attorney on the contrary contended in substance that said instrument is not an option contract; that it lacks a necessary element of such a contract, viz., a specific time within which the claimed option may be exercised; that the contract is unilateral, unenforceable and without consideration, in that it consists of a mere offer of sale of the stock which could be withdrawn at any time by defendant before acceptance by plaintiff; and that plaintiff, having elected not to purchase the stock, was entitled after demand made, to recover back the $5,000, which he had advanced to defendant.

After carefully considering the instrument in writing, the pleadings and the evidence, defendant’s printed brief here filed, and numerous authorities, we are of the opinion that said instrument is not an option contract, and is one that is unilateral and without consideration, and that plaintiff upon his election and after demand was entitled in the present action to recover back the $5,000 which he had advanced to defendant.

In Bates v. Wood, 225 Ill. 126, 130, 131, it is said: “An option is a right acquired by contract to accept or reject a present offer within a limited or reasonable time in the future. (21 Am. & Eng. Ency. of Law, 2nd Ed. 924.) In such contract two elements exist: First, the offer to sell, which does not become a contract until accepted; second, the completed contract to leave the offer open for the specified time.” (Citing Blade v. Maddox, 104 Ga. 157,162; Ide v. Leiser, 10 Mont. 5, 11.) And in the Bates case our Supreme Court further said (p. 131): “The rule is, that if there is an offer by one to do a certain thing, and a promise on his part, without any valuable consideration therefor, to leave the offer open for a limited period, no contract is thereby created, because one of the essential elements of a contract, viz., the consideration, is lacking but that where there is a valuable consideration for the promise to leave the offer open for a limited period a contract arises, whereby one acquires a right to accept or reject the offer within the time limited, — or, expressed in words of the same meaning, a contract arises whereby one acquires an option.” Under these rules as to what constitutes an option contract, we are of the opinion that the instrument set forth in plaintiff’s amended statement of claim cannot properly be considered as an option contract. The offer made by defendant to sell the stock is not stated to be open for any specified time. And as we construe the instrument it is an ineffectual attempt by defendant to enter into a contract for the sale by him of the stock to plaintiff. It is not stated, however, that plaintiff agrees to purchase the stock. It is merely a proposal or offer on defendant’s part to sell the stock, and no definite time is mentioned as to how long the offer shall be kept open. In Raddle v. Lindemann, 151 Ill. App. 441, quoting in part from the case of Ide v. Leiser, supra, it is said (p. 444): “An option is a contract by which the owner of property agrees with another person that he shall .have the right to buy his property at a fixed price within a certain time. He does not sell his land. He does not then agree to sell it; but he does sell something, viz.: the right or privilege to buy at the election or option of the other party.” Clearly, under this statement as to what an “option” is, the instrument here involved is not an option contract. It lacks a necessary requisite. It merely attempts to sell to plaintiff certain capital stock, which plaintiff does not agree to buy, and nowhere in the instrument is there any sale of the stock or "any sale of a “right or privilege to buy” the stock. Furthermore, nothing is said in the instrument, as to the $5,000 check received by defendant, that the proceeds thereof, in case plaintiff does not elect to buy the stock, are to be forfeited to defendant as and for liquidated damages.

And we regard the instrument as being unilateral and without consideration, under the holdings in Plumb v. Campbell, 129 Ill. 101, 106, 107, Clark v. Potts, 255 Ill. 183,188, and Vogel v. Pekoc, 157 Ill. 339, 342, 343. A somewhat similar case is that of Smith v. Weaver, 90 Ill. 392, which involved an instrument or written memorandum purporting to be a bill of sale of certain lumber. The amount of lumber was not specified, but the proposed purchaser paid to the proposed sellers $500 on account at the time of the execution of the instrument. The former, having changed his mind about using the lumber, demanded the return of the $500, less $38.01 for lumber actually received. Upon the demand being refused he commenced suit and recovered a judgment. In affirming the judgment by a divided court, it is said (pp. 393, 394) :

“The material question that arises in this case is as to the construction to be given to the written memorandum, ... It was not a contract of sale — it was a mere offer made by appellants to appellee to let him have lumber at certain specified prices. This offer might have been revoked by appellants, if not at any time before the delivery of the lumber, at least at any time before the offer had been accepted by appellee for some definite quantity. It imposed no obligation on appellee to take the lumber, but, if he had got it, it would, in the absence of any subsequent agreement otherwise, have required him to pay the specified prices; or, if he had afterwards notified appellants that he would take any certain or fixed quantity, the offer being thereby accepted to that extent, it would have become a binding contract therefor. . . . --It is true, the word ‘sold’ is used in the instrument; but, then, the whole instrument must be construed together, and when this is done, it is plain there is no valid contract to bind anyone. Appellee might conclude, as he did, not to build or get the lumber, and appellants might conclude, at any time béfore either the lumber was got or offer accepted, to withdraw their proposition.”

And we think that the present action for money had and received was a proper one for the recovery of the proceeds of plaintiff’s check for $5,000, which it is ad-' mitted in the instrument here involved defendant received. In Law v. Uhrlaub, 104 Ill. App. 263, 265, it is said that the action for money had and received “has been likened to a bill in equity. It may in general be maintained by any legal evidence showing that the defendant has received or obtained possession of money of the plaintiff, which in equity and good conscience he ought to pay over to the plaintiff. . . . An action for money had and received is maintainable whenever the money of one man has, without consideration, got into the pocket of another.” (See, also Barnes v. Johnson, 84 Ill. 95, 96; Board of Highway Com’rs v. City of Bloomington, 253 Ill. 164, 175.) If defendant, by reason of the execution of the instrument here involved, was put to any expense or lost any opportunities to sell said capital stock to others to advantage, or was otherwise damaged, there is nothing in defendant’s affidavit of merits or in the present record disclosing such facts.

For the reasons indicated the judgment of the municipal court of February 15, 1930, should be and is affirmed.

Affirmed.

Kerher and Scanlan, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Florence Marion Lord, Executrix of the Estate of Charles L. Lindley, Deceased, Complainant and Appellant, v. Inin Louise Andrus et al., Defendants and Appellees.
    Gen. No. 35,431.

      Opinion filed May 17, 1932.
    Tenney, Harding, Sherman & Rogers, Paul A. Tschirgi and James E. Babbitt, for appellant.
    Fisher, Boyden, Bell, Boyd & Marshall, for"appellees.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

By this appeal it is sought to reverse a decree of the superior court of Cook county, entered May 16, 1931, nunc pro tunc as of March 26, 1931. After reciting that the cause came on to be heard upon the bill of Charles L. Lindley, the answer of defendants, Inin Louise Andrus and Philip L. Marshall, and the answer and disclaimer of defendant, Susan C. Whitney, the court in the decree made findings as follows:

That by the true construction of the last will of Susan 0. Knight, deceased, Laura Marshall Lindley “acquired no interest in the real estate described in the bill which she could dispose of by will”; that in and by said will Mrs. Knight “directed that upon the death of her husband all her estate, not otherwise disposed of, be divided among all her children, share and share alike, with full rights of representation in favor of the descendants of any deceased child”; that Laura Marshall Lindley died after the death of Mrs. Knight, “leaving no descendants and never having had any descendants”; that her interest, if any, in the estate of her mother, Mrs. Knight, “terminated upon her death and no interest in said real estate passed under the last .will of Laura Marshall Lindley”; that Charles L. Lindley, therefore, “acquired no interest in any of the real estate devised by the last will of Susan C. Knight, and he has not and never did have any interest in the fund of $7,750, mentioned in the bill, and is not entitled to be paid out of said fund the sum of $2,518.61, or any other sum”; and that the entire fund of $7,750 “belongs and should be paid to the defendants, Inin Louise Andrus and Philip L. Marshall, share and share alike.”

And the court ordered and adjudged that said sum of $7,750, “which has been retained subject to control of counsel for the respective parties, be paid over and delivered to said Inin Louise Andrus and Philip L. Marshall in equal shares, and that the costs of this suit be paid by complainant.”

On the day the decree was entered Charles L. Lindley prayed and was allowed an appeal to this court. Subsequently, and before the time allowed for the filing of an appeal bond had expired, his death was suggested, and by stipulation it was ordered that the executrix of his estate, Florence Marion Lord, be substituted as complainant and that she be allowed to appeal, etc. Her appeal bond was approved and filed, and her appeal perfected in this ‘ court, — all in apt time.

In complainant’s bill, filed November 25, 1930, he alleged that Susan C. Knight (hereinafter called the testatrix), a resident of Chicago, died on February 7, 1893, leaving a last will (copy attached); that she was first married to James M. Marshall and they had six children,- — -two of whom died unmarried and prior to the death of said testatrix; that three of said children are still living, viz., Inin Louise Andrus, Susan C. Whitney and. Philip L. Marshall; that Laura Marshall Lindley, when said testatrix died, was the wife of one Albert F. Lunt, and that Laura died in 1917; that the testatrix and James M. Marshall did not adopt any children; that after the death of James M. Marshall the testatrix married John B. Knight, who was her husband when she died; that she and John B. Knight had no children and adopted none; that the will of said testatrix was probated in the probate court of Cook county on July 7, 1893, and her estate thereafter duly settled; that John B. Knight, as trustee under said will, took possession of the estate given and devised to him as trustee by the terms of said will, including certain improved; property on South State street, Chicago (hereinafter called the State street property), and retained possession of said estate, or of so much thereof as he did not convey or otherwise dispose of, until the time of his death on January 30, 1927; that after the death of said testatrix her daughter, Laura, obtained a divorce from her first husband (Lunt), for his fault, and married Charles L. Lindley, who was her husband when she (Laura) died in 1917, leaving a last will (copy also attached), which was duly probated in Ocean county, New Jersey, on March 22, 1917; that Laura had no children by either of her marriages and did not adopt any children; and that subject to divers incumbrances placed thereon by John B. Knight, he as trustee, until his death, retained title to said State street property, which is expressly mentioned in paragraph VI in the will of said testatrix.

Complainant further alleged that John B. Knight executed various trust deeds purporting to incumber said State street property as security for notes executed by him as trustee; that the last of said incumbrances was a trust deed to one Frank H. Jones, as trustee, dated April 9, 1914, recorded April 16, 1914, purporting to secure the principal note of said Knight, as trustee, for the sum of $137,500, dated April 9,1914, payable on or before five years after date, with interest at five per cent per annum; that substantially all of the proceeds of the loan evidenced by said note were used and applied by Knight to pay and discharge certain incumbrances which, as trustee under said will, he had theretofore placed upon said State street property and upon other real estate in Chicago acquired and held by him as trustee under the will of said testatrix; that the principal of said note of April 9, 1914, remained unpaid at the time of his death (January 30, 1927); that on July 1,1927, one Mark Oliver, claiming to be the legal holder and owner of said note, filed a bill in the superior court of Cook county to foreclose the Jones trust deed against Mrs. Andrus, Philip Marshall, Susan C. Whitney and complainant; that in said suit Mrs. Andrus and Philip Marshall filed a cross-bill, disputing the validity of the trust deed and praying for a partition of the State street property, but the controversy afterward was settled by agreement of all parties and the case dismissed; that pursuant to the terms of the settlement, and as a part thereof, Mrs. Andrus, Philip Marshall, Mrs. Whitney and complainant conveyed and quitclaimed to the nominee of Mark Oliver all their interest in said State street property; and that said Oliver paid to them, or for their benefit, the net sum of $19,540.52.

Complainant further alleged that said Susan 0. Whitney, by deed dated October 31, 1924, and duly recorded, conveyed to Mrs. Andrus all her interest in the State street property and in the estate of said testatrix and she (Mrs. Whitney) does not now claim, nor does she now have, any interest in said money so paid by Mark Oliver as aforesaid; that the only persons interested or claiming any interest in said sum of $19,540.52, are Mrs. Andrus, Philip Marshall and complainant; that complainant claims that, “by the true construction of the last will of said testatrix” (Mrs. Knight), he is entitled, as sole devisee and legatee of his wife (Laura Marshall Lindley), to that part of the proceeds of such settlement which she (Laura) would be entitled to receive if living, whereas Mrs. Andrus and Philip Marshall claim that complainant is not entitled to any part of the proceeds of said settlement; that by agreement the sum of $11,790.52, from the proceeds of said settlement, has been paid over to Mrs. Andrus and Philip Marshall, and the balance of said proceeds ($7,750) “has been retained subject to the control of counsel for the respective parties as security for the payment of any part of said proceeds to which the court may adjudge complainant to be entitled. ’ ’

Complainant further alleged that “the present value of the combined life estates of Inin Louise Andrus and Philip L. Marshall in said sum of $19,540.52 is $9,466.08, and complainant is entitled to be paid $2,518,61 from the aforesaid fund of $7,750.”

The prayer of complainant’s bill, after praying that defendants answer the same but not under oath, etc., is that the court adjudge that $2,518.61, of said sum of $19,540.52, “would belong to Laura Marshall Lindley were she now living”; that the court construe said last will of the testatrix (Mrs. Knight) and adjudge that “complainant receive that part of said sum of $19,540.52 to which Laura Marshall Lindley would have been entitled to if now living”; that the reasonable legal and other expenses of complainant be paid to him out of said fund of $7,750; and that he may have such other and further relief as equity may require, etc.

By the first clause of said will of Mrs. Knight, admitted to probate on July 7, 1893, certain real estate in the City of West Superior, Wisconsin, is devised to her sister, Ophelia K. Larson. Other clauses are as follows:

“II. I give and devise all my other estate of every kind and nature whatsoever to my husband, John B. Knight, to have and to hold to him and his assigns and successors in trust, in trust however, to keep, manage, invest and reinvest and care for the same and the rents, improvements, additions, income and profit thereof during his natural lifetime.

“III. And it is further my will that my trustee shall have the right to retain so much of my estate or its income as in his judgment shall be reasonably required for his support during his life and that of my children and other descendants, if any; having in view the good policy of keeping our family together so far as practicable during the term of my said trust; such support of my said husband to be in lieu of dower in my estate.

“IV. And it is further my will that for the purpose of carrying out the trusts hereof my said trustee have full power and right to sell and convey. by deed of absolute conveyance or mortgage, exchange, lease or otherwise any of my said estate, in fee or by way of granting lesser estates therein, as effectually to every intent and purpose as I might do in person if alive; meaning hereby to confer upon him full discretion to change from time to time the form thereof, to make conversion of any of my said estate and proceeds thereof without obligation upon any purchaser or other person dealing with him to see to the application of any money or proceeds thereof.

“VI. It is further my will that upon the decease of my said husband my daughter Inin Louise have two-thirds, and my son Philip L. Marshall have one-third of all my present or future right or interest in the North one half of lot twenty-one block one hundred and thirty-eight (138) in the School Section addition to Chicago, to hold for their lives respectively in the proportions aforesaid, and I hereby give them power to grant a lease or leases thereof for a term or terms not exceeding in the aggregate ninety-nine (99) years; and in case such power be exercised by them the said Inin Louise and Philip L. are to have and hold, the former two-thirds and the latter one-third, of the net ground and other rents thereof for their respective natural lives. In making this especial provision for my said daughter Inin Louise and my said son Philip L., I have remembered the worldly condition of my other living- children, both of whom are now married and well provided for.

“VII. It is further my will that at the death of my said husband all my estate not otherwise herein disposed of be divided among all my children, share and share alike, with full rights of representation in favor of the descendants of any deceased child.”

By the will of Laura Marshall Lindley, admitted to probate on March 22,1917, after directing the payment of all her just debts and funeral expenses, it is provided in the second clause, as follows:

“Second: All the rest, residue and remainder of my property, real and personal, I give, devise and bequeath absolutely to my husband, Charles L. Lindley, to have and to hold the same to him and his heirs forever. ’ ’

In the answer of Mrs. Andrus and Philip Marshall to complainant’s bill they admitted “the matters of fact set out in said bill,” but denied that “by the true construction” of the will of Mrs. Knight, or the will of Laura Marshall Lindley, complainant acquired any interest in the estate of Mrs. Knight; denied that complainant has any interest in said fund of $7,750; and alleged that on the contrary the fund “belongs to them exclusively. ’ ’ They j oined in complainant’s prayer that the court construe the will of Mrs. Knight and prayed that the court adjudge that “they solely are entitled to said fund. ’ ’ In the answer of Mrs. Whitney she stated that “she has heretofore conveyed” to her codefendant, Mrs. Andrus, “all interests in the estate of her mother, Susan C. Knight,” and that she does not now have any interest in any of the property of the estate, or in the subject matter of this litigation.

Counsel for complainant, in urging a reversal of the decree, contend that under the facts alleged in the bill and admitted in the answer of Mrs. Andrus and Philip Marshall, the sole question is whether Laura Lindley’s interest under the provisions of Mrs. Knight’s will was a vested rather than a contingent remainder, so as to pass to her devisee (Charles L. Lindley), and entitle him to receive, the present admitted value of that remainder in the State street property received from the proceeds of its sale. And they argue that such interest should under the authorities be construed to be a vested remainder, entitling complainant to receive said present admitted value of said remainder. We think it clear that if Laura Lindley’s interest under said will was a vested remainder she could devise it to her husband, Charles L. Lindley. (Cahill’s Ill. St. 1931, ch. 148, ffl, p. 2761; 40 Cyc. p. 1048; Biggerstaff v. Van Pelt, 207 Ill. 611, 617; Wimple v. Fonda, 2 Johns. (N. Y.) 288; Davis v. Bawcum, 10 Heisk. (Tenn.) 406.) Counsel for defendants, Mrs. Andrus and Philip Marshall, argue in substance that the question is not whether Laura Lindley’s interest under Mrs. Knight’s will was vested or not; that the question is a “narrower” one of the intention of the testatrix; and that the ‘ entire scheme ’ ’ of the will discloses that Mrs. Knight “did not intend her own children, who were not alive at the date of distribution, to take an interest in her estate.” It is to be noticed that by paragraph VII of the will Mrs. Knight directed that at the death of her husband (who had been given a life estate in trust as stated in paragraphs II and III), all her estate “not otherwise herein disposed of be divided among all my children, share and share alike, with full rights of representation in favor of the descendants of any deceased child”; that by paragraph III Mrs. Knight directed that the trustee (her husband) “shall have the right to retain so much of my estate or its income as in his judgment shall be reasonably required for his support during his life and that of my children and other descendants, if any,” etc.; and that by paragraph VI Mrs. Knight directed that upon her husband’s death, two of her children, Mrs. Andrus and Philip Marshall, have a life estate in certain named proportions in said State street property, etc. And counsel for defendants state in their brief in substance that the “following features” of the will “show that Mrs. Knight did not intend her own children, who were not alive at the date of distribution, to take an interest in her estate,” viz.: (a) According to the language of paragraph VII, “the gift is contained only in the direction to divide among a class,” and “there is a gift over to grandchildren after the gift to the children in case a child should die before the period of distribution;” (b) the power given to John C. Knight, the husband, “to invade the principal and the nature and express purpose of the trust were for the sole benefit of the testatrix’ own family and their descendants and not for outsiders”; and (c) “the distribution is to take place at the end of the first life estate and prior to two other joint life estates.” And counsel conclude that “these features, taken together, show that the distribution was postponed, not simply to let in a preceding estate, but because Susan C. Knight planned her will so that her children should not take unless living at the date of distribution.”

We cannot agree with counsels’ conclusion or with their argument that the main question here involved is not whether Laura Lindley’s interest under Mrs. Knight’s will was a vested remainder or not. On the contrary we think that the determination of that question is decisive of the present controversy. And, after considering the provisions of Mrs. Knight’s will and reviewing numerous authorities in this State wherein similar wills are construed, we are of the opinion that Laura Lindley’s interest in Mrs. Knight’s will was a vested remainder.

While it is true that a court, in construing a will, should ascertain the intention of the testator from the provisions of the will and give that intention effect unless prevented by some settled rule of law, and while it is also true that the construction adopted under similar wills in adjudicated cases is not necessarily controlling (as the intention of the testator is the thing sought), yet, as said in Dustin v. Brown, 297 Ill. 499, 508, “unless there be in the language something to suggest a different construction that generally adopted should be adhered to.” In the Dustin .case it is also said (p. 508): “It has long been a fixed rule to be observed in the construction of wills by the courts of this country and England, that the estate granted under a will should be deemed to vest upon the death of the testator unless very clear words were found in the will showing the manifest intention of the testator that the estate granted should not vest except upon the happening of a certain contingency. . . . It is likewise the rule that if the distribution of the estate devised is not deferred for some reason personal to the devisee but merely because the testator desires to appropriate the subject matter of the devise to the use and benefit of another for and during the natural life of the latter, the vesting of the gift by remainder- will not be postponed but will occur at once, the right of enjoyment only being deferred.” (Citing, among others, the leading case of Knight v. Pottgieser, 176 Ill. 368.) In that case it appears that by the will of Pottgieser, Sr., he devised a life estate in certain real estate to his wife, Barbara, “to have and enjoy the rents, profits and income derived therefrom to and for her own exclusive use and benefit as long as she lives, and upon and at her death the same to go to and be divided amongst my children and their descendants in equal shares, the descendant or descendants of a deceased child to take the parent’s share in equal proportions.” It will be noticed that the language of this clause, relative to the remainder interest, is of the same import as the language in paragraph VII of Mrs. Knight’s will now in question. It appears from the opinion in the Pottgieser case (p. 372), that Giesbert Pottgieser, Sr., the testator, left him surviving a son, Giesbert, Jr., his widow, Barbara, and three daughters. Giesbert, Jr., intermarried and subsequently died-intestate, leaving him surviving Martha, his widow, Barbara, his mother (widow of Giesbert, Sr.), and three sisters, but neither child, children nor descendants of a child; that Martha, on the theory that her husband, Giesbert, Jr., was seized of a vested remainder in the premises and that she inherited an undivided one-half thereof, filed a bill for partition of the premises, subject to the life estate of Barbara; that pending the hearing of the cause Barbara died, and the court construed the remainder created by the will to be vested, — not contingent, — and entered a decree for partition according to the prayer of the bill, except that as the life estate had been terminated the interests of the parties were declared accordingly ; and that the sisters of Giesbert, Jr., (daughters of the testator) appealed from the decree. It will also be noticed that the facts in the Pottgieser case are quite similar to those in the present case. One of the contentions. of the appellants in the Pottgieser case was that “the remainders created by the will were contingent, and did not vest until after the death of the widow, Barbara, and as said Giesbert, Jr., did not survive his mother he was never seized of title or interest in the premises, and hence the petitioner (Martha, widow of Giesbert, Jr.) inherited no interest from him.” And it was argued that “there is no devise of the remainders except to a class of persons not named but described; that the devise is only to be found in directions given to divide the premises at and after the death of the life tenant; and that, consequently, only such persons are entitled to take as are, at the time fixed for the division, of the class described in the will, —that is, such a devise vests in the survivors of the class.” Our Supreme Court disagreed with the contention and argument and affirmed the decree. In the course of the opinion (pp. 373, 374) the court made the following holdings, which we think are applicable to the present case:

“A devise of a life estate with remainder over to a class of persons not named but described, is not to be regarded, as manifesting it was the intention of the testator such persons only should take in remainder as could answer the description at the termination of the life estate. On the contrary, in the absence of other indications of testamentary intent the settled rule is, it will be deemed to have been the will of the testator that the remainders created by such a devise should vest in interest and title, at once upon his death, in the persons then comprising the class described, and that the right of possession only should be postponed until the life estate had become extinguished. Under such a devise all persons who, at the time of the death of the testator, would take if prior estate was removed are seized of a vested interest to take at once upon the determination of such prior estate. . . .

“We find nothing in the will under consideration indicating that any cause or reason personal to the remainder-men induced the testator to postpone the right of such remainder-men to possess and enjoy the estate. He desired the income and benefit of the property should be enjoyed by his widow as long as she should live, and for that reason invested her with the exclusive right of possession during her lifetime and deferred the right of the remainder-men to enter into possession accordingly. Futurity was not annexed to the right of the remainder-men to possession, but only to the time when such right may be exercised. The postponement had reference to the situation or convenience of the estate, possession of the premises at once upon the death of the testator being denied the remainder-men solely because the testator desired his widow should enjoy the use and benefit thereof so long as she should live. An immediate right of present enjoyment is not essential to a vested remainder. It is sufficient if there is present a fixed right of future enjoyment.”

The Pottgieser case has been cited by our Supreme Court with approval in many cases in which wills somewhat similar to the one here involved were construed, among which cases may be mentioned Dee v. Dee, 212 Ill. 338, Carter v. Carter, 234 Ill. 507, Thomas v. Thomas, 247 Ill. 543, and Fay v. Fay, 336 Ill. 299. In the Dee case (pp. 353, 354) it is said: “Here the only purpose, so far as we can determine, in postponing the division of the estate, was that the widow might enjoy it during her lifetime or widowhood. The time of division was not postponed for or on account of anything personal to the legatees, as, for example, until the youngest arrived at the age of twenty-one years, or until some one of the children desired to engage in business. It is manifest, therefore, that the remainder taken by the children of the deceased vested at his death.” In the Thomas case (p. 546) it is said: “Where the enjoyment of the estate or the period of distribution is postponed for the convenience of the funds of the estate and not for reasons personal to the devisees, the remainder is vested. . . . The possibility of after-born children coming in to the class does not interfere with the operation of this rule. In such case the estate vested will open up to let in subsequently born children.” In the Fay case (p. 304) it is said: ‘ ‘ The law favors the vesting of estates at the earliest possible moment, and estates devised will vest in interest at the death of the testator unless some later time for their vesting is clearly expressed by the words of the will or appears by necessary implication.” In the Carter case (234 Ill. 507), it is said (p. 511):

“There is no language in the will indicating an intention that the devise to the children should be contingent upon their surviving their mother. A contingent remainder is one limited to take effect either to an uncertain person or upon an uncertain event. It is limited by the instrument creating it, either to a person not yet ascertained or not in being, or so as to depend upon an event which, may never happen. It is an estate which is not ready to come into possession at any moment when the prior estate may end. On the other hand, if the estate is at any time ready to come into possession provided the prior estate should end, then it is a vested estate. Whenever the person who is to succeed to the estate in remainder is in being and is ascertained and the event which by express limitation will terminate the precedent estate is certain to happen, the remainder is Vested. The uncertainty which distinguishes the contingent from the vested remainder is not the uneertaintywhether the remainder-man will live to enjoy the estate, but whether he will ever have the right to such enjoyment.”

Defendants’ counsel state in their brief that in the case of Warrington v. Chester, 294 Ill. 524, our Supreme Court “practically reversed” certain holdings in the Pottgieser case. We cannot agree with the statement. The court said in the Warrington case, speaking of the Pottgieser case, at page 528: “It was properly decided that the remainder was vested and that it was not terminated by the death of the remainder-man without descendants. The language that there is nothing in the bill upon which the supposition may be reasonably based that the testator intended to qualify or limit the character of the interest to be taken by those entitled to be vested with the remainder was correct as applied to the case then in litigation. It was not accurate as a general statement in regard to the devise. There was a limitation in the remainder to the children by the words, ‘the descendant or descendants of a deceased child to take the parent’s share in equal proportions.’ If the deceased remainder-man had left a child the case would have been like this. ’ ’ In the instant case Laura Lindley, like the deceased remainder-man, Griesbert Pottgieser, Jr., in the Pottgieser case, died without leaving any children.

Defendants’ counsel cite certain Illinois cases which they claim disclose that the holdings in the Pottgieser case have not always been followed. From a reading of these cases, however, it appears that their facts or the words in the particular wills are materially different from thosp in the Pottgieser case and in the present case. For instance, in Brechbeller v. Wilson, 228 Ill. 502, it is decided in substance that a clear intention of the testator, as gathered from the entire will, not to vest a remainder until the time of distribution, must be carried out by the courts, notwithstanding the rule that the law favors the vesting of estates. But in the Brechbeller will it was provided that “upon the death of my said wife,” . . . “the said trust estate shall cease,” and all of the residue and remainder of the estate, “then remaining in the hands of said trustees,” shall be divided equally among such of the testator’s four children (naming them) “as may survive my said wife,” etc.

And we cannot agree with the argument of defendants’ counsel, viz., that the authority given to John B. Knight (the life tenant and trustee) in paragraph III of the present will to “invade the principal” of the testatrix’ estate, is indicative of her intention that Laura Bindley’s interest in said estate was to vest only in case she survived John B. Knight. It seeins to us that the grant of such authority indicates, only the more clearly, that the division of the residue (if any) at his death was postponed so that he during his lifetime might the more fully enjoy the estate, and that such postponement was not made for reasons “personal to the devisees,” including Laura Bindley. In Hawkins v. Bohling, 168 Ill. 214, it was decided in substance that a devise of a life estate in trust, with remainder to a person in being, passes a vested interest to the remainder-man, although the trustee is given power to sell the trust property if necessary, and apply the proceeds to the support of the life tenant.

Nor can we agree with counsels’ further argument, viz., that the provision for the life estates in Mrs. Andrus and Philip Marshall in the State street property, discloses an intention to postpone the vesting of Laura Lindley’s remainder interest in the entire estate. (See McLean v. Stanley [Kan.], 5 Pac. [2d] 839, 842.)

We conclude that the court erred in entering the decree, first above mentioned, and that it should be reversed and that the cause be remanded with directions to enter a new decree in favor of the present complainant, Florence Marion Lord, as executrix, etc., and in substantial accord with the prayer of the bill of Charles L. Lindley, who departed this life since the decree was entered. Inasmuch as it appears from the bill, admitted by defendant’s answer, that the sum in dispute (received with other sums from the proceeds of the sale of the State street property) is $2,518.61, and is available from a particular fund of $7,750, the superior court is directed to provide in said new decree for the payment from said fund to the present complainant of said sum of $2,518,61, together with interest thereon at the legal rate from March 26, 1931, and that all costs of this suit be paid by the defendants, •Inin Louise Andrus and Philip L. Marshall.

Reversed and remanded with directions.

Kerner and Scanlan, JJ., concur.


author: Mr. Presiding Justice Gridley Keener and Scanlan, JJ.,

text:
    Clara Charbonnier, Administratrix of the Estate of Edward Reckels, Deceased, Appellee, v. Chicago National Life Insurance Company, Appellant.
    Gen. No. 35,486.

      Opinion filed May 17, 1932.
    Lee D. Mathias, for appellant; Clyde L. Todd, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

In a first class action in assumpsit, based upon a policy of life insurance and tried without a jury in May, 1931, there was a finding and judgment in plaintiff’s favor for $1,850, and defendant appealed. No appearance or brief has here been filed by plaintiff.

In plaintiff’s statement of claim, filed March 2, 1931, she alleged that she is the administratrix “with will annexed” of the estate of Edward Reckels, deceased; that during his lifetime Reckels “was the holder” of’ a life insurance policy issued by defendant under date of December 31, 1928, for $1,000, “plus an emergency draft for $850,” and payable to his “estate” (copies of policy and draft attached); that Reckels died on March 18, 1930, at which time all premiums had been paid and the policy was in full force and. effect; and that there is now due from defendant to plaintiff the sum of $1,850, etc.

In defendant’s affidavit of merits it admitted that plaintiff is the administratrix of the estate and that Beckels died on March 18, 1930, but it denied that he ever was the “holder” of said policy No. 39154. And defendant alleged that “one Emil 0. Kowalski, who had no insurable interest in the life of the deceased, in the month of December, 1928, signed the name of said Beckels to a non-medical application for insurance,” a photostatic copy of which application was attached to and made a part of the policy; that the application was not signed by Beckels; that pursuant to it and believing that it was actually signed by him defendant mailed the policy to his given address, 50 West 44th street, Chicago; that thereafter Kowalski, knowing that he had no insurable interest in Beckels’ life, procured bim to execute an instrument purporting to be his last will, dated January 11,1929, “in the handwriting of said Kowalski,” whereby Beckels nominated Kowalski as the beneficiary of the proceeds of the policy; that the procuring by Kowalski of the execution of the will “was but a subterfuge to overcome the provisions of the law by virtue of which Kowalski had no insurable interest in the life of Beckels”; that Kowalski was not a relative of Beckels; that he paid all premiums on the policy and Beckels paid none; that at the times of the making of the application, the issuance of the policy and the execution of the will Beckels “was a drunkard and in a poor state of health,” which facts were well-known to Kowalski; and that by reason of the foregoing the policy sued upon “is of no force and effect and is contrary to public policy and void. ’ ’

A portion of the application is set out in the affidavit of merits, from which it appears that the “undersigned” applies for one of defendant’s “special adver-

tised Annual Renewable and Convertible Term Policies,” and represents and declares “that I am now in good health, and of sound mind to the best of my knowledge and belief; that I am temperate in my habits ; that there is nothing about my habits or occupation, past or present, that might tend to shorten my life except as stated below; that I further agree and declare that all statements and answers to questions herein are and shall be treated as material to the risk and shall form part of the policy contract issued to me and the whole truth of such statements and answers is the basis of and part of the consideration for such insurance, . . . ”

Based upon the application, defendant, in its affidavit of merits, made the further defense of fraud and misrepresentation, alleging in substance that, when it received the application, it believed the representations therein to be true and relied upon them; that had it known them to be false it would not have issued the policy; that Reckels was not in fact in good health and was not temperate in his habits, as Kowalski then well knew; and that Reckels was an habitual drunkard, of which fact defendant was not informed and did not have knowledge until after his death. And defendant tendered the aggregate amount of all premiums which had been paid to it by Kowalski.

At the opening of the trial defendant kept the tender good and in open court offered to pay the amount of all premiums received by it, aggregating $34, together with $2.50 interest thereon (in all $36.50), but the offer was refused. Thereupon plaintiff introduced in evidence (a) the policy, with emergency draft and photostatic copy of the application attached; (b) certified copy of “Letters of Administration with Will Annexed,” issued to plaintiff by the probate court of Cook county on August 14,1930; and (c) formal proofs of the death of Reckels in Chicago on March 18, 1930. The policy is dated December 31, 1928, is fpr $1,000, “plus such amount as may be payable under the terms of the draft attached hereto”; and is payable to the “Estate” of Reckels “immediately upon receipt of due proofs of the interest of the claimant” and of the death of Reckels. The premium is two ($2) dollars per month, first payment of $2 to be made at time of application, and $2 every month after date of policy. One of its provisions is that “This policy is free from restrictions as to occupation, residence or travel and shall be incontestable after it shall have been in force, during the lifetime of the insured, for one year from date of issue, except for non-payment of premium,” etc. The amount of the draft to be paid varied as to the age of the insured at death. At the age of 47 the amount to be paid in addition to the face of the policy was $850, and it was stipulated that he was 47 years old when he died. It was provided that the draft on defendant could be drawn in advance of the receipt of proofs of death “and accepted without admission by the company of further liability under the policy.” In the “affidavit” of Kowalski, sworn to March 29, 1930, and which accompanied the draft “for the purpose of obtaining immediate payment,” he stated that he “is the sole beneficiary under policy No. 39154”; that Reckels died on March 18, 1930; and that “his death was caused by exposure and starvation, bronchial pneumonia, and was not the result of the insured’s own hand or act.” In the proofs of death forwarded by Kowalski and stamped as received by defendant on April 11, 1930, is his affidavit sworn to March 28, 1930, as a “claimant under will,” stating that Tied‘is the holder and owner of policy No. 39154”; that he “has a good and valid interest in the policy to the amount of $1,000”; and that he is legally entitled to receive the amount “as the beneficiary of the deceased.” Attached to the proofs of death, introduced by plaintiff, is a further affidavit of plaintiff (sister of deceased), sworn to October 15,1930, headed “Proof from Claimant” and stamped as received by defendant on that date. In this affidavit she states that she, as administratrix, etc., “is the holder and owner of policy No. 39154”; that she “has a good and valid interest in the policy to the amount of $1,000 and draft $850”; and that she is legally entitled to receive said amounts “as the administratrix of the estate of the deceased.”

On the trial defendant introduced in evidence certain writings, among them the original application (filled out in pencil handwriting on a printed form) and a photostatic copy of Reckels ’ will, marked as having-been filed on May 29, 1930, and admitted to probate in the probate court of Cook county on August 14, 1930. On defendant’s behalf eight witnesses testified, among them Robert Peters (the agent who took the application) ; Emil O. Kowalski (the named beneficiary in the will); Henry Charbonnier (brother-in-law of Reckels); and James Manfredini (an employee of defendant). No testimony in rebuttal was introduced by plaintiff.

The application is headed “Non-Medical Application” and contains in printed type the representations as stated in defendant’s affidavit of merits; then follow 24 questions, usual in such applications, to be answered by the applicant, and answers to some of them; and then follow the date “Dec. 13, 1928” (in pencil) and the signature (in pencil) “Edward Reckels,” which is witnessed by “R. E. Peters.” The answer to question No. 23, Viz., “Name of proposed beneficiary, with right of revocation reserved,” and “Relationship,” is the word “Estate” (in pencil). The application on its face shows that the answers to question No. 23, as originally written, were partially erased and the word “Estate” written over them. The will is on one sheet of paper and bears the signature of the testator “Edward Reckels,” with address at “50 W. 44th st. ”; then follow on the same sheet the signatures of three witnesses, including that of “Emil O. Kowalski,” with address at “50 W. 44th st.” The will is as follows :

“Chicago, Jan. 11, 1929.

“I hereby will my policy ^39154, Chicago Nat’l Life Insurance Co., $1,000, to Emil 0. Kowalski, 50 W. 44th St. He will take care of my funeral for me and pay cost of same. He is a life long friend I can trust.

Respectfully,

(signed) Edward Reckels.

50 W. 44th st.”

Robert Peters testified in substance that in December, 1928, he was working for the Chicago Daily Journal and had been for about three months; that he solicited subscriptions for the newspaper and applications for insurance; that on December 13, 1928, he obtained, at Kowalski’s home at 50 W. 44th street, Chicago, the application in question, as well as several other applications for similar insurance from Kowalski and members of his family; that at the time “Edward Reckels was not there”; that he “never saw Reckels”; that at Kowalski’s request he took the application in question for insurance as coming from Reckels; that he asked the questions as to Reckels of Kowalski and, upon Kowalski answering them, • he (Peters) wrote in the answers as given; that after this was done, “Kowalski signed the application by signing the name, Edward Reckels, and then I (Peters) signed it as a witness”; that Kowalski at the time paid him (Peters) $2, which, with the application as finally filled out and signed and delivered, he turned into the office of the Chicago Daily Journal; and that the answer to question 23 in the application, as originally given by Kowalski and written in by the witness, was not the word “Estate” but that after the first answers as given by Kowalski were written, they were erased by the witness at Kowalski’s request and the word “Estate” substituted. The witness was not allowed by the court to state what the former answers, as given by Kowalski, were. Defendant’s attorney offered to prove, by the witness that the former answers were to the effect that Kowalski was to be the beneficiary of the policy when issued and that his relationship to Eeckels was that of a “friend.” At the conclusion of Peters’ testimony, plaintiff’s attorney moved that all of it be stricken but the motion was denied. The ground of the motion, as stated, was that, as the policy by its terms was incontestable after having been in force for more than one year, all defects, etc. in the application were “waived.”

Emil 0. Kowalski, as defendant’s witness, testified in substance that he resided at 50 W. 44th street, Chicago; that “the body of Eeckels’ will is in my handwriting”; that he put his (the witness’) signature on the paper “for identification”; that he had known Eeckels for many years; that he was “no relation to me,” — we were “just friends”; that he (the witness) was “pretty sure” that Eeckels was living with him in 1928 and January, 1929; that he “had a five-room flat above me and worked for me as a house man, cleaning about my apartment and helping along”; that he had worked for the witness about five or six years; that this was all the work he did, “except when he would get a job somewhere and work outside”; that during December,' 1928, the witness paid him for his services “by keeping him, and for such things as he wished”; that he died at No. 4401 Wentworth avenue, Chicago, “where he had been living about a week prior to his death”; that his habits as to sobriety were “all right— I mean he behaved himself”; that he “did not use intoxicating liquors to excess,” although he “took a drink the same as I, or probably you”; and that “I (the witness) signed Eeckels’ name to the application for the policy.” The court would not allow the witness to testify what was the cause of Reckels ’ death or with whom, he was living on Wentworth avenue when he died.

Henry Charbonnier, as defendant’s witness, testified that he had known Reckels, his brother-in-law, for many years; that he “lived with us about three years and left our house in 1926”; that the witness occasionally saw him at the house in 1928 when he came for a visit; that in 1928 he “did some decorating and what little jobs he could get”; that he “was not in the habit of drinking to excess intoxicating liquors”; and that the witness remembers James Manfredini coming to his home in March, 1931, and having a conversation with him and his wife, Clara Charbonnier (plaintiff). For the purpose of refreshing the witness’ recollection he was asked if he did not remember that in the conversation Manfredini was told in substance that Reckels at one time lived there, that he was driven away because he wouldn’t work and because he drank intoxicating liquors to excess and was a drunkard, and that he continued to drink to excess during the years he lived with Kowalski. The court, an plaintiff’s objection, would not allow the witness to answer.

James Manfredini, defendant’s employee, testified that about March 20,1931, he called at the Charbonnier home and had a conversation with plaintiff and Henry Charbonnier together; that he called there in defendant ’s behalf; that during the conversation Mrs. Char-bonnier said that Reckels, while formerly living with them, had for the two or three years prior to his death been living with Kowalski, by whom he was occasionally employed; that before he left her home Reckels “was a drunkard”; that afterwards and while living with Kowalski he drank every day and “was known to be a drunkard.” On plaintiff’s motion the court struck from the record all of the witness’ testimony as to said conversation. During the trial it was admitted, and the court held in a finding of fact, that Kowalski paid all due premiums to defendant prior to Deckels ’ death.

The main contention, urged by defendant’s counsel for a reversal of the judgment, is in substance that the evidence discloses that Kowalski had no insurable interest in Deckels ’ life, and, hence, the policy is against public policy and void and the judgment appealed from, based upon the policy, cannot stand. After considering the pleadings and such evidence as was admitted and not stricken by the trial court, as well as numerous adjudicated cases in this and other States, we agree with the contention. It appears from the evidence that Deckels did not sign any application and did not himself take out the policy in question; did not know that any insurance in his name had been applied for until about the time he executed his will at Kowalski’s request on January 11, 1929; never paid any of the premiums as they fell due; and was merely a friend and not a relative of Kowalski. In 37 Corpus Juris, sec. 51, p. 385, it is said: “A person cannot take out a valid and enforceable policy of insurance for his own benefit on the life of a person in which he has no insurable interest; such a policy or contract of insurance is void and unenforceable on grounds of public policy, it being merely a wagering contract, . . . ” This is the law in Illinois. (Hawley v. Aetna Life Ins. Co., 291 Ill. 28, 30; Guardian Mut. Life Ins. Co. v. Hogan, 80 Ill. 35, 44-5; Colgrove v. Lowe, 343 Ill. 360, 363; Dresen v. Metropolitan Life Ins. Co., 195 Ill. App. 292, 294.) In Bruce v. Illinois Bankers Life Ass’n, 207 Ill. App. 555, 558, it is said: “In this State the law seems to be pretty well settled that it is a question of fact as to whether a person has an insurable interest in the life of another.” And in 37 Corpus Juris, sec. 51, p. 386, it is stated that “Such a policy” (i. e., one taken out by a person for his own benefit on the life of another in which he has no insurable interest) “is void at its inception, and is not rendered valid by a clause declaring it incontestable after the lapse of a specified period of time.” And in the same textbook, vol. 37, sec. 69, p. 398, it is further said: “But' a clause in the policy rendering it incontestable after a specified period does not estop the company from contesting it after the expiration of such period on the ground of want of insurable interest.” (See, also, 6 A. L. R. 452, note III; Bromley’s Adm’r v. Washington Life Ins. Co., 122 Ky. 402, 406, 407; Clement v. New York Life Ins. Co., 101 Tenn. 22, 37-8; Home Life Ins. Co. v. Master son, 180 Ark. 170, 177, 178.)

Defendant’s counsel also contend that the judgment should be reversed because (1) of the false and fraudulent representations made in the application and relied upon by defendant as being true, and (2) of the erroneous rulings of the trial court in refusing to admit certain evidence offered by defendant. In view of our above holdings it is unnecessary for us to pass upon these questions.

The judgment appealed from should be reversed and it is so ordered.

Reversed with findings of fact.

Keener and Scanlan, JJ.,

concur.

Findings of fact: We find as facts in this case that Reckels did not sign any application for insurance and did not himself take out the policy in question; that Reckels was not present when Kowalski signed the application in Reckels’ name and delivered it to defendant ; that Reckels did not know that any insurance in his name had been applied for until he afterward executed his will at Kowalski’s request; that Kowalski paid all premiums on the policy when due and that Reckels paid no premiums; that Reckels was not a relative of Kowalski but only a friend of his and at times an employee; and that Kowalski did not have any insurable interest in Reckels ’ life.


text:
    Anna V. Brost, Complainant, v. Niels Juul et al., Defendants. Albert F. Hammann, Cross Complainant and Appellee, v. Anna V. Brost et al., Cross Defendants. Appeal of Anna V. Brost.
    Gen. No. 35,574.

      Opinion filed May 17, 1932.
    Rehearing denied May 31, 1932.
    Jacob M. Sherbahn, for appellant.
    Rubens, Fischer, Mosser & Barnum, George Gillette, Thomas J. Hoban and Elmer M. Leesman, for appellee; Harry H. Barnum, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

In August, 1929, Anna V. Brost filed a bill to foreclose a second trust deed (hereinafter called the Brost mortgage) on certain improved premises in Chicago. On November 13, 1929, Albert F. Hammann filed a cross-bill to foreclose another trust deed on the same premises (hereinafter called the Hammann mortgage) which he claimed was a prior lien to the Brost mortgage. The cause was referred to a master in chancery who, after hearing the evidence, submitted his report, dated November 24, 1930, in which after making numerous findings he recommended that a decree of foreclosure be entered in accordance with the prayer of the ■cross-bill. Mrs. Brost, only, filed objections to the report, which were overruled, and on the hearing before the chancellor they were ordered to stand as exceptions. On May 5, 1931, the decree appealed from was entered, in which the court confirmed the master’s report and "found, inter alia, (a) that cross complainant “has a first, prior and paramount lien” on the premises for the sum of $17,638.17, and interest on the sum of $15,412.50 thereof at the rate of seven per cent per annum from the date “of the master’s report (November 24, 1930), and costs of suit; that Ella F. Juul (wife of Niels Juul prior to his death) is personally liable for the payment of said sums, and that Niels Juul, Jr., and Straus National Bank and Trust Co., as executors of the estate of Niels Juul, deceased, are liable for the payment of said sums out of the assets of said estate in due course of administration; (b) that Mrs. Brost has a lien for the sum of $28,010.67, and interest on the sum of $24,000 thereof, at the rate of seven per cent per annum from November 24,1930, and costs of suit, “subject only to said first, prior and paramount lien of cross complainant”; (c) that the equities are with cross complainant; and (d) that the premises are “improved with a three-story, stone front building, containing six apartments, . . . located at 4907-09 Kenmore avenue, Chicago, and are now in the possession of Edward C. Hoyer, as receiver.” And the court ordered and adjudged that in case said amounts were not paid within three days the premises be sold at public sale in the usual manner to satisfy said liens in the order of the mentioned priorities, etc. From the decree Mrs. Brost appealed, and in her appeal bond it is stated that “the condition of the above obligation is such that whereas said Albert F. Hammann did, on May 5, 1931, . . . recover a decree against the above bounden Anna V. Brost, decreeing that his lien is prior and superior to that of said Anna V. Brost, from which decree . . . she has prayed for and obtained an appeal,” etc.

In the cross-bill Hammann alleged inter alia that on April 12,1926, Niels Juul and wife executed and delivered their two principal notes payable to bearer, aggregating $15,000, one being for $5,000, and the other for $10,000, due six years after date, and bearing five and one-half per cent interest, payable semiannually and evidenced by 12 notes for $137.50 each, and 12 notes for $275 each, all payable to bearer with interest at seven per cent after maturity; that to secure the payment of the notes they executed and delivered their trust deed (Hammann mortgage) dated April 12, 1926, recorded April 21, 1926, conveying the premises involved to the Chicago Title & Trust Co., as trustee; that cross complainant is the legal owner for a valuable consideration of the notes and trust deed; that “the loan evidenced thereby was used, applied and paid to satisfy, discharge and release the indebtedness secured by a trust deed from David' Brown and wife and Ella Brown to W. J. Klingenberg, as trustee, dated May 1, 1921, recorded May 13, 1921 (hereinafter called the Brown mortgage), and for no other purpose, at the express request and direction of said Juul and wife, the then owners in fee of the premises, in accordance with the provisions of their certain written agreement”; that by virtue of the agreement the legal holder (Hammann) of the notes secured by the Hammann mortgage “was subrogated to all of the rights” of the legal holder of the Brown mortgage and the notes secured thereby; that the Hammann mortgage and notes, now owned by cross complainant, “were made and executed by said Juul and wife for the sole purpose of refunding the indebtedness” secured by the Brown mortgage, “in accordance with the right given to Niels Juul under the terms and provisions” of the Brost mortgage; that by the provisions of the Brost mortgage, upon which complainant’s bill is based, Juul and wife “reserved the right and were permitted to negotiate a new loan of $15,000 on said real estate for the purpose of so refunding the indebtedness” secured by said Brown mortgage — “the lien of which said new loan of $15,000 to have superiority over the lien’ ’ of the Brost mortgage; that complainant, by accepting the Brost mortgage, “thereby agreed that the lien of the new trust deed (Hammann mortgage) should be and remain a first lien upon the premises and that the trust deed owned by Mrs. Brost (Brost mortgage) should be and remain subject, inferior and junior to cross complainant’s trust deed (Hammann mortgage) and notes”; that by the terms of the Hammann mortgage, Juul and wife agreed to pay the indebtedness evidenced by their notes, and also to pay all taxes and special assessments on the premises, and that in default thereof the principal sum should at the option of the holder of the notes become immediately due and payable and be recoverable by foreclosure, and that all expenses paid or incurred in behalf of a complainant in the foreclosure, including certain solicitor’s fees and other named expenses, should be paid by them or become an additional lien and be taxed as costs in any foreclosure decree; that the Hammann mortgage (copy attached to and made a part of the cross-bill) also provided for the appointment of a receiver and for the application of the income of the premises to said indebtedness; that only $650 have been paid on the $1,300 due for the 1927 taxes and default has been made in the covenant to pay all the taxes due before May 1, in each year; that interest coupons on both principal notes for the interest from April 12, 1929, to October 12, 1929, are unpaid and in default; that because of the default in the payment of said taxes and interest, cross complainant, on October 16, 1929, elected to declare the entire principal indebtedness immediately due and payable; that there is now due to him in principal and interest the total sum of $15,412.50, together with certain other interest; that he has made disbursements for foreclosure minutes, etc.; that on September 26, 1925, Juul and wife, by their trust deed (Brost mortgage) of that date, recorded September 26, 1925, conveyed the premises to a named trustee, to secure their promissory note for $27,000 due on or before seven years with six per cent interest, payable semiannually; that on March 16, 1929, they conveyed the premises by quitclaim deed, duly recorded, to the State Bank of Chicago, which deed is in the nature of a mortgage; that the Brost mortgage and the deed .to said bank “remain unreleased of record”; but that any lien created by either of said documents and now outstanding “is subsequent, junior and inferior” to the lien of cross complainant. The prayer of the cross-bill is for the appointment of a receiver pendente lite, an accounting and the foreclosure of the Hammann mortgage and for “such other and further relief as the nature of the case may require and to the .court may seem meet.”

In the answer of Mrs. Brost, filed January 23, 1930, to the cross-bill she admits the delivery of the two Hammann principal notes, aggregating $15,000, and coupon notes, and the execution, delivery and recording on April 21,1926 of the Hammann mortgage securing them; demands strict proof of the allegations as to the ownership of said notes and mortgage and as to the application of the proceeds of the notes to the discharge of the Brown indebtedness and mortgage and that it was done at the direction of Juul and wife and in accordance with their written agreement, as charged; insists that cross complainant, “having failed to furnish her with any information in regard to said written agreement,” should not upon this hearing have any benefit thereof; denies that cross-complainant became subrogated to all the rights of the former owner of the Brown mortgage and notes; demands strict proof that the Hammann loan was made for the sole purpose of refunding the indebtedness secured by the Brown mortgage; denies that any subrogation was made or created in favor of cross complainant by the terms of the Brost mortgage, or that by virtue thereof Juul and wife reserved the right and • were permitted to negotiate a new loan of $15,000, and avers that Juul and wife had the right to negotiate said new loan only in case they ‘ ‘ complied strictly with the terms and conditions of the rider” attached to said Brost mortgage; denies that cross complainant obtained any priority over the lien of the Brost mortgage, or that she (Mrs. Brost), by accepting it, agreed that the Hammann mortgage and notes should be a first lien on the premises, etc.; avers that whatever agreement was made by Juul and wife in connection with the execution and delivery of the Hammann mortgage “was not binding upon her,” that the Brown mortgage and notes “were paid, cancelled and surrendered” to Niels Juul and said mortgage released of record, that cross complainant “was a volunteer without any interest in the property to protect” when the Hammann mortgage was made, that he “was under no compulsion of any kind to pay the indebtedness” evidenced by the Brown notes and mortgage, and that he “acted in utter disregard of the agreement then of record between this cross defendant (Mrs.. Brost) and Niels Juul with reference to the replacement of any incumbrance then and there existing which at that time was prior to that of this cross defendant”; and Mrs. Brost further denied that the lien of her mortgage is subsequent, junior and inferior to that of the Hammann mortgage, as alleged.'

Among other findings in the decree are the following:

That Juul and wife executed and delivered the Hammann mortgage and notes; that the mortgage was recorded on April 21, 1926; that Hammann is the legal owner for a valuable consideration of the mortgage and notesthat the loan and indebtedness evidenced thereby “was used, applied and paid to satisfy, discharge and release the indebtedness” secured by the Brown mortgage, recorded May 13, 1921, “and for no other purpose, at the express request and direction of Juul and wife, the then owners in fee of the premises," in accordance with the provisions of their written agreement, by virtue of which the legal holder of said notes, secured by the Hammann mortgage, “was subrogated to all the rights of the legal holder" of the Brown mortgage and notes secured thereby; that the Hammann notes and mortgage were executed by Juul and wife, “for the sole purpose of refunding the indebtedness” secured by the Brown mortgage “in accordance with the right" given to said Juul under the terms and provisions of the Brost mortgage, recorded September 29, 1925; that in and by the provisions of the Brost mortgage Juul and wife “reserved the right and were permitted to negotiate a new loan of $15,000, to be secured by their notes and trust deed on said property, for the purpose of so refunding the indebtedness," so secured by the Brown mortgage, “the lien of which said new trust deed, and the indebtedness of $15,000 secured thereby, should have priority over the lien" of the Brost mortgage; and that Mrs. Brost, complainant and cross defendant herein, “by accepting" the Brost mortgage, which contained said provisions so permitting the making of the new Hammann mortgage for said purposes, “thereby agreed that the lien of such new trust deed (Hammann mortgage), and the notes evidencing the indebtedness of $15,000, should be and remain a first lien upon the premises" and that the lien of the Brost mortgage should be subject and inferior thereto.

That when the Hammann mortgage was recorded the Brown mortgage was a lien prior and superior to the lien of the Brost mortgage; that shortly after the recording of the Brost mortgage (September 29,1925), Mrs. Brost left the State of Illinois and was absent therefrom until after the cross-bill herein was filed (November 13,1929); that when she received the Brost mortgage she “understood" that the Brown mortgage “was a prior lien thereto” and that Juul and wife, or the owner of the property, could refund the indebtedness secured by the Brown mortgage “with a new first lien for like amount,” as provided in the mortgage owned by her; that, although the method of refunding the indebtedness secured by the Brown mortgage was not followed literally, “the method actually pursued . . . did not injuriously affect any of her rights as the owner of the indebtedness secured by her junior trust deed, and had the same effect in equity as if the indebtedness had been refunded strictly in accordance with the provisions of her trust deed,” and that she “was in fact benefited, by reason of the reduction of the interest rate in the new notes and trust deed now owned by cross complainant”; that “equity looks to the substance of the transaction and not to the form”; and that “there is no proof of any injury sustained by Mrs. Brost, by reason of the method of refunding actually adopted.”

That cross complainant's exhibit 6 (being the subrogation agreement) “was a valid subrogation agreement,” and he, therefore, “was not a volunteer” in the payment of the indebtedness secured by the Brown mortgage, but “was subrogated to all of the rights of priority in lien of said Brown mortgage ’ ’; that the defense urged by Mrs. Brost (that because no new notes were sent to her and she had no knowledge of the making of the new trust deed and the payment of the old trust deed, or of the subrogation agreement because of the fact that it was not recorded), “is without merit for the reason that it is not shown by the evidence that she was injured”; that Juul and wife “had the right” to make new notes and a new trust deed of $15,000, and from the proceeds thereof to pay off and release the Brown mortgage for a like amount, and “to subrogate the persons, loaning said $15,000 for said purpose, to the rights of the owner of the notes secured by the Brown mortgage, by written agreement to that effect, without notice to Mrs. Brost”; and that the provisions of the Brost mortgage, providing for refunding of the indebtedness secured by the Brown mortgage “was an attempt merely to grant the right to the owner of replacing and refunding the indebtedness secured by the Brown mortgage, as the testimony showed her understanding was that she (Mrs. Brost) should continue to hold a second lien on the property as her security.”

That default was made in the terms and conditions of the Hammann mortgage; that Hammann, as holder of the notes, declared the whole amount due thereunder immediately due and payable; that at the time of the filing of the cross-bill only $650 had been paid on the $1,300 levied for the 1927 taxes; that interest upon the notes from April 12,1929, to October 12,1929, was unpaid; and that on December 4, 1929, after the filing of the cross-bill herein, Niels Juul died testate and executors of his estate were appointed. (Here is stated the account, showing .that there is due to cross complainant the total sum of $17,638.17, including items of interest, cost of minutes of title, stenographer’s fees, and solicitor’s fees in the sum of $840.)

That the Brost mortgage was executed and delivered to secure a principal note, originally for $27,000, payable on or before seven years with interest at six per cent per annum payable semiannually, and providing that partial payments of $500. should be made on each interest due date; that Mrs. Brost is the owner of said note, on which partial payments of $3,000 have been made, and all interest paid up to September 26, 1928; and that default was made in the partial payment of principal, as well as interest, due on March 26, 1929, and Mrs. Brost elected to declare the entire debt immediately due and payable, etc. (Here is stated an account showing that there is due to her the total sum of $28,010.67, including items of interest and solicitor’s fees in the sum of $500.)

After reviewing the pleadings and the evidence we are of the opinion that the decree appealed from is sustained by the evidence and the law. We think that the decree is warranted both upon the theory of subordination and that of subrogation. Under the former theory equity will regard the substance of the transaction rather than the form. (Ogden v. Stevens, 241 Ill. 556, 565; Smurr v. Kamen, 301 Ill. 179, 186; Roberts v. Doan, 180 Ill. 187, 190; Roberts v. McNeal, 80 Ill. App. 536, 539; Riegel v. Belt, 119 Ohio St. 369, 380; Council Bluffs Sav. Bank v. Towl, 205 Iowa 1185, 1191.) And Mrs. Brost, having invoked the aid of a court of equity to enforce the lien of her mortgage, must herself do equity. (Hanson v. Hanson, 52 N. D. 146, 154; Oppenheimer v. Szulerecki, 297 Ill. 81, 87.) We think that the written rider attached to the Brost mortgage clearly discloses that it was the intention of the parties thereto that the Brown mortgage, when it matured, should be renewed as a first mortgage. The method by which this should be brought about was not so important as the accomplishment of it. Apparently, the particular method mentioned was not intended to be exclusive, and, as found by the court and disclosed from the evidence, the method actually pursued did not injuriously affect Mrs. Brost or any of her rights.

And, under the court’s findings sustained by the evidence, we think that appellee, as owner of the Hammann notes and mortgage, is clearly entitled to priority of lien over the Brost mortgage by right of subrogation. In Home Sav. Bank v. Bierstadt, 168 Ill. 618, 624, it is said: “But in addition to this principle of legal subrogation there exists another principle, which is termed conventional subrogation, which results from an equitable right springing from an express agreement with the debtor, by which one advances money to pay a claim for the security of which there exists a lien, by which agreement he is to have an equal lien to that paid off, whereupon he is entitled to the benefit of the security which he has satisfied with the expectation of receiving an equal lien. . . . It is the agreement that the security shall be kept alive for the. benefit of the person making the payment which gives the right of subrogation, because it takes away the character of a mere volunteer.” (See, also, Tyrrell v. Ward, 102 Ill. 29, 37; Tradesmen’s Building & Loan Ass’n v. Thompson, 32 N. J. Eq. 133, 135; Cook v. Kelly, 200 Ala. 133, 134; Jones on Mortgages, 8th Ed., sec. 1114, pp. 559, 560.)

And we do not think there is any merit in the contention of counsel for Mrs. Brost in substance that because Hammann’s cross-bill did not specifically pray for subrogation, the decree cannot stand. The allegations of the cross-bill sufficiently disclosed his right to a decree either upon the theory of subrogation or that of subordination, and, in addition to his prayer for the foreclosure of his trust deed, etc., there was a prayer for general relief. In Kelly v. Kelly, 293 Ill. 169, 173, it is said: “Under the prayer for general relief a court of equity may give every relief consistent with the case made by the bill. Belief may be granted under the general prayer different from that specifically prayed for, when it is consistent with the facts alleged and proved, provided it does not take the defendant by surprise.” (See, also, Struve v. Tatge, 285 Ill. 103, 111; Crawford v. Hurst, 299 Ill. 503, 509; Maring v. Meeker, 263 Ill. 136, 146.) And it is not a sufficient answer to this to suggest that the. allegations of the cross-bill relative to the Brown mortgage should have been more specific. The point should have been raised by a special demurrer. (Kirk v. Kirk, 325 Ill. 296, 305; Wormley v. Wormley, 207 Ill. 411, 420; Williams v. Soutter, 55 Ill. 130, 132.)

Equally without merit, in our opinion, is the point of laches made by counsel. It is a sufficient answer to state that laches was neither specifically alleged in Mrs. Brest’s answer nor proved by her, as should have been done to make the point available here. (Turpin v. Dennis, 139 Ill. 274, 278; Elting v. First Nat. Bank, 173 Ill. 368, 392; Ogden v. Stevens, 241 Ill. 556, 563.) Furthermore, mere lapse of time, alone, is. not sufficient to bar a bill showing equity on its face. (Schultz v. O’Hearn, 319 Ill. 244, 248.) And it does not appear that Mrs. Brost was lulled into omitting to do what she might have done, because of Hammann’s claimed non-action. (Cross v. Janes, 327 Ill. 538, 546; Simons v. Morris, 333 Ill. 183,189.) She filed her original bill to foreclose shortly after her debtor had made default.

The decree of the circuit court of May 5, 1931, should be affirmed, and it is so ordered.

A firmed.

Kerher and Scanlan, JJ., concur.


author: Mr. Justice Kerner

text:
    Weightstill Woods, Appellant, v. Village of LaGrange Park et al., Appellees.
    Gen. No. 35,534.

      Opinion filed May 17, 1932.
    Rehearing denied May 31, 1932.
    Weightstill Woods, pro se.

    Stevens, Carrier & Griffith, for appellees.
   Mr. Justice Kerner

delivered the opinion of the court.

December 5, 1930, complainant filed his bill for an injunction and a money decree against the Village of LaGrange Park, Board of Local Improvements of the Village of LaGrange Park, William Gardner and P. H. Mesenbrink, treasurer and collector, respectively, of the'Village of LaGrange Park. The defendants filed their general demurrer, which was sustained by the chancellor, and the complainant electing to stand by his bill, it was dismissed for want of equity. Prom this decree complainant appealed and the ruling of the court in sustaining the demurrer is assigned as error.

The allegations of the bill are substantially as follows : that at the request of the Board of Trustees and Board of Local Improvements of said Village of La-Grange Park, complainant rendered legal services' and made outlays of money for costs, incident to a local improvement for the paving of certain streets (naming them) in the Village of LaGrange Park, resulting in an ordinance of said village, passed and approved November 15, 1926, which led into suit 449649 in the superior court of Cook county for the confirmation of a special assessment, in which a confirmation order was entered February 14,1927; that a contract for the construction of said paving was duly let and entered into March 7, 1927, and work begun, and the contractor on April 4, 1927, received his first voucher for the construction work done on said improvement; that on April 20, 1927, said.Village of LaGrange Park approved and acknowledged it was indebted to complainant for money advanced and legal services rendered and issued its voucher to complainant, stating that from the funds to be obtained by collection of the first instalment of special assessment No. 449649, said village would pay on demand to complainant $3,340.50 with interest at five per cent per annum; that on September 19, 1930, defendants, without notice, caused to be entered in' said special assessment case No. 449649, an order which recited that the ordinance and all subsequent proceedings thereunder had been declared void by the Supreme Court of Illinois in Gray v. W. A. Block Co., 338 Ill. 488, and that the judgment of confirmation theretofore entered should be vacated and set aside, and it was ordered that the judgment order of confirmation be vacated and set aside.

The bill further alleges that said boards and officials of the Village of LaGrange Park in March, 1930, instituted a new assessment for paving the same streets; that a new ordinance therefor was passed and approved April 8, 1930, and a suit filed in the county court of Cook county as Village of LaGrange Park Assessment No. 77; that an order of confirmation was entered May 6, 1930, and a new contract let and said streets were constructed and completed; that said new ordinance has included therein $7,478.82 to be applied toward the cost of making, levying and collecting the special assessment, and that on November 18, 1930, a certificate of costs and completion was filed in the county court of Cook county in said proceeding No. 77.

The bill further alleged on information and belief that no funds were collected under said special assessment proceeding No. 449649, but that the collector of said village is now making collections under a warrant for collection issued in pursuance of said new assessment No. 77; that the debt due complainant by reason of said outlays of money and legal services remains wholly unpaid and due from said village, together with interest accruing thereon; that said money should be paid from special assessment funds or from the general funds of said village or from both such funds, as the court may determine; and the complainant prayed that the Village of LaGrange Park be ordered to pay him the debt acknowledged by said voucher, and decree out of which funds said debt shall be paid, and that the defendants be restrained from disbursing any funds collected by reason of special assessment proceeding No. 77, applicable to the payment of attorneys’ fees, costs or expenses, until such time as the matters presented should be finally determined.

It is complainant’s contention that special assessment proceeding No. 77 was a new proceeding for the same improvement involved in special assessment proceeding No. 449649'; that the ordinance involved in No. 77 provided that $7,478.82 should be applied toward the cost of making, levying and collecting special assessment No. 449649, and it is insisted that sections 57, 73 and 90 of the Local Improvement Act makes it the specific duty of the village to provide such payment. We cannot agree with thi§ contention. The purpose of section 57 (Cahill’s Ill. Rev. St. 1931, ch. 24, If 183, p. 367) is to enable the board of trustees to provide for the cost of an improvement which had been already constructed under an ordinance which had been declared void, by passing an ordinance authorizing a new special assessment for that purpose. (City of Lincoln v. Harts, 266 Ill. 405, 408.) The cost mentioned in section 57 is the amount actually paid for the improvement. (City of Lincoln v. Harts, 270 Ill. 646, 649.) A void ordinance confers no rights and imposes no obligation (City of Ottawa v. Hulse, 332 Ill. 286, 293), and the costs of making the first assessment could not be included in the new assessment. (Laflin v. City of Chicago, 48 Ill. 449; Union Bldg. Ass’n v. City of Chicago, 61 Ill. 439, 447.) In Farr v. West Chicago Park Com’rs, 167 Ill. 355, as in the instant case, the ordinance in a special assessment proceeding was declared void and a new proceeding was instituted. In the new estimate there was included attorneys’ fees, the cost of an opinion and other expenses incurred in the old assessment, the court said, p. 359:

“Lastly, it is objected that the estimate was excessive. Under this head it was proved that attorney’s fees, the cost of the copy of an opinion, and other expenses which were incurred in the old assessment, were included in the estimate which this assessment was levied to pay. The expenses incurred in that proceeding were not a proper or lawful charge.”

City of Lincoln v. Harts, 270 Ill. 646, also involved a void ordinance and the commencement of a new proceeding, and the question before the court was the legality of including interest in the new estimate on

the deferred instalment of the original assessment. The court said, p. 649:

“Interest can be charged only where it is especially-authorized by statute. The statute authorizes interest on deferred instalments of special assessments, but this provision only applies to instalments of the assessment which the court by its order confirms. The section of the statute under which the supplemental ordinance in question here was passed authorizes a new special assessment or special tax ‘to pay for the cost of the improvement so constructed. ’ The cost is the amount actually paid for the improvement. It does not refer to interest paid as the price of the extension of time of payment. The ordinance improperly included interest on the deferred instalments of the origTfiol QQGOQQTYlDTTf ^

Section 73, Cahill’s Ill. Rev. St. 1931, ch. 24, U 201, p. 371, provides that in case it shall appear that the assessment cannot be collected, the municipality shall, nevertheless, not be in any way liable to the contractor in case of failure to collect the same, but it shall, so far as it can legally do so, with all reasonable diligence cause a valid assessment to be levied to defray the cost of the work until the contractor shall be fully paid. Section 90 of the same chapter, Cahill’s St. ch. 24, if 222, p. 376, provides that no person accepting a voucher shall have any claim or lien upon the village for the payment of such voucher, except from the collection of the assessment against which the voucher is issued, and the municipality shall, nevertheless, be in no way liable to the holder of said voucher in case of failure to collect the same, but the village shall use reasonable diligence to cause the assessment to be made and collected and the voucher to be fully paid.

In considering these sections of the Local Improvement Act, our Supreme Court in City of Chicago v. Brede, 218 Ill. 528, at page 536, said: “It will be seen from these provisions of the statute that it was the evident purpose and intention of the legislature to in no way hold the city responsible or liable for the vouchers, . . . The city is powerless, by any ordinance which it might pass, to make itself liable in the face of the express provisions of the statute.” In Gray v. City of Joliet, 287 Ill. 280, it was held that section 90 contemplated that an assessment shall be “levied and confirmed.”

After considering the statutes and the authorities cited, we are of the opinion that the only costs of making and levying an assessment, which could properly be included in the assessment, are the costs of making, levying and collecting the particular assessment which the court confirms.

The bill of complaint failing to show on its face that the complainant was entitled to the relief sought, the chancellor properly sustained the demurrer. Decree affirmed.

Affirmed.

G-ridlbt, P. J., and S caul at, J., concur.