text:
    Nat Elowe, Appellee, v. Superior Fire Insurance Company, Appellant.
    Gen. No. 41,107.

      Opinion filed December 30, 1940.
    Rehearing denied January 15, 1941.
    Clausen, Hirsh & Miller, of Chicago, for appellant.
    Morton L. Zaslavsky, of Chicago, for appellee; Morton L. Zaslavsky and Samuel L. Hozman, of Chicago, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

Nat Elowe brought suit against the Superior Fire Insurance Company to recover damages for a fire loss covered under a policy issued by defendant. Trial by the court without a jury resulted in findings and judgment for plaintiff in the sum of $350, from which defendant appeals.

The essential facts, as to which there is substantially no dispute, disclose that early in April, 1937, Andrew W. Wanek, an insurance broker or agent, took a one year membership in the National Health Club in Chicago, which entitled him to massages and steam baths. Elowe was employed in the club as a masseur. It was customary for members to give him a gratuity, or tip, of 25 cents after each massage. After Wanek had received one or two massages a discussion arose as to the purchase of fire insurance, and an agreement was made between the parties that in lieu of tipping Elowe after each massage for the ensuing year, Wanek would procure a fire insurance policy on Elowe’s household furnishings and effects, for which the latter would not be required to pay the premium of $15. Subsequently, April 2, 1937, Wanek obtained the policy from defendant, mailed it to Elowe’s home with a statement covering the premium, and shortly thereafter mailed Elowe a receipt acknowledging payment thereof. Elowe paid nothing for the policy, and although it was evidently Wanek’s intention to pay the premium to defendant, no part thereof was ever paid by him. After a month, during which Wanek received one or two massages a week Elowe left his employment with the club and Wanek was unable to get in communication with him. He notified the insurance company that the premium had not been paid, and asked them to cancel the policy, which it refused to do. The insurance company had no knowledge of the agreement between Elowe and Wanek at any time prior to the loss. November 30, 1937, a fire occurred in the building where Elowe occupied an apartment, as the result of which his furniture and wearing apparel were damaged. A public adjuster employed by Elowe made up an inventory of the damaged articles, which was introduced in evidence. The written notice of loss required by the terms of the policy was not furnished by Elowe, but he did call the agency through whom the policy had been issued and reported the fire. An adjuster for the insurance company was thereupon sent to Elowe’s apartment, and after examining the damage said that ‘ ‘ everything was all right, ’ ’ but nothing further was done by the insurance company in regard to the loss.

These facts present the novel question in this State whether an insurance company is bound by a policy of insurance issued by a broker or agent who trades the policy in exchange for personal services to be rendered for his personal benefit by the insured, the insurance company having no knowledge of the arrangement. Other jurisdictions have considered the precise question. Couch, Cyclopedia of Insurance Law, vol. 2, sec. 537, p. 1646, announces the rule that “an insurance agent ordinarily has no authority to accept anything other than money or an instrument calling for the payment of money for a premium, such as personal property, or professional services, or even to cancel his own indebtedness to the insured, or accept credit for merchandise on his account.”

The earliest decision to which our attention is called is Hoffman v. John Hancock Mut. Life Ins. Co., 92 U. S. 161, 23 L. Ed. 539. That case involved a premium on a life insurance policy. The insurance broker accepted a horse in cancellation of a personal indebtedness, together with a note running to himself in payment of the premium, and issued a receipt acknowledging payment. Following the death of the insured, his widow brought suit upon the policy, and the trial court found for the defendant. The Supreme Court in affirming the judgment emphasized the fact that life insuranee is a cash business. “Its disbursements are all in money, and its receipts must necessarily be in the same medium. This is the universal usage and rule of all such companies.” Continuing, the court said (pp. 164, 165): “Gloodwin [the broker] had settled his own debt to Hoffman of $53.67, and had appropriated to himself Hoffman’s note of $100. . . . If the agent had authority to take the horse in question, he could have taken other horses from Hoffman, and could have taken them in all cases. This would have carried with it the right to establish a stable, employ hands and do everything else necessary to take care of the horses until they could be sold. The Company might thus have found itself carrying on a business alien to its charter, and in which it had never thought of embarking. The exercise of such a power by the agent was. liable to two objections: it was ultra vires, and it was a fraud as respects the company. . . . No valid contract as to the Company could arise from such a transaction. This objection is fatal to the appellant’s case.”

In Folb v. Firemen's Ins. Co. of Baltimore, 133 N. C. 179, 45 S. E. 547, the agent accepted a suit of clothes and articles of wearing apparel in payment of the premium due on a policy of fire insurance. The court sustained the defendant’s motion for judgment of nonsuit, which was affirmed on appeal, and said (pp. 180-181): “It is clear that the agent had no authority to accept merchandise in payment of the premium. ‘In the absence of any special agreement, the insurance premium must be paid in money. Unless objected to, currency, or even checks, drafts, or bills of exchange, will constitute payment; but the agent will not be presumed to have authority to accept merchandise on personal account. The distinction between the agent and his principal should be kept in view. The premium on a policy of insurance is the property of the latter, and not of the former. Where the agent delivers a policy to the merchant with whom he has dealings and to whom he is indebted for goods dne for the use of his family, and the premium by agreement is placed to the credit of the account, it is a fraud on the principal, and should a loss occur, the agent having failed to remit, the insurer will not be liable. The agent cannot appropriate to his own use the funds of his principal without a wrong being done the latter; and when merchandise is accepted in payment, or the premium is applied to pay a debt due to the insured, the latter becomes a party to the wrong, and the company will not be bound.’ Ostrander on Insurance (2d Ed.) P. 295.”

A similar situation arose in Cohen v. New Zealand Ins. Co., Ltd., 100 N. J. L. 110, 126 Atl. 417. There the agent had accepted shirts and underwear' in payment of the premium on a fire insurance policy, and issued a receipt for such payment. The court directed a verdict for the defendant which was affirmed on appeal. The court pointed out that insurance, broadly speaking, is conducted on a money basis; that the insurance company’s disbursements are all in money, and its receipts must necessarily be in the same medium or its equivalent to the company when taken, “and this all parties dealing with or for the company are presumed to know.” The court then called attention, as did the court in Hoffman v. John Hancock Mut. Life Ins. Co., supra, to the danger inherent in the practice of accepting merchandise in lieu of the premium payment, and said (pp. 111, 112): “If the agent had authority to take the shirts and underwear in payment of the premium, he had a right to take it in coats or any other chattels. If he had authority to accept such a payment from the plaintiff, he had a'right to accept it from every other person who desired to take out a policy, and thereby practically force the company into a mercantile business alien to its charter and in which it had never thought of embarking. Of course, that cannot be. The agent had no such power, and his attempt to exercise it was a fraud as respects the company. . . . No valid contract as to the company could arise from such a transaction. ’ ’

In Smith v. Hartford Fire Ins. Co., 120 Kan. 53, 242 Pac. 455, the agent accepted cancellation of a personal or private debt to the insured in payment of the premium on an automobile insurance policy. The insurance company refused to issue the policy, after learning of the nature of the agreement, and the insured then brought an action against the company for failure to complete the contract. In holding that plaintiff had no cause of action, the court said (p. 55): ‘ ‘ Obviously the scope of the agency did not warrant the taking of the company’s money to pay his personal and private debts, and no other payment by plaintiff was contemplated. . . . Such an arrangement would operate as a fraud upon the company. In Clingerman v. Pheasant, 18 Pa. Co. Ct. 203, it was said: ‘To sanction payment of a premium in a case where the agent had not already advanced the same to the company, by assuming to pay an individual debt of an agent, would be to introduce a principle subversive of good morals and common honesty and intending to sap the ability of companies to pay their legitimate losses.’ ”

In Turner v. Supreme Lodge K. P., 166 Okla. 386, 27 P. (2d) 612, the agent accepted a bull in payment of seven monthly premiums on a life insurance policy, and issued receipts therefor. The trial court sustained the motion of defendant for a new trial, which was affirmed on appeal.- It was there said that “a careful review of many cases indicate that the great weight of authority announces the rule that an agreement between the insurance agent and the insured whereby the former accepts personal property in satis- ■ faction of the premium due on the policy does not bind the company in the absence of an express authorization to accept such personal property in lieu of money for the premium and that no valid contract arises by such payment in the absence of consent, acquiescence, estoppel, or ratification by the company,” citing cases hereinbefore discussed and numerous other decisions.

Again in Equitable Life Assur. Society v. Cole, 13 Tex. Civ. App. 486, 35 S. W. 720, the agent accepted a horse in addition to a small amount of cash in payment of the premium on a life insurance policy, and issued a receipt for full payment. Judgment in favor of plaintiff was reversed. The court there pointed out that “the doctrine cannot be established that because an agent is authorized to solicit insurance and forward applications for policies, and collect premiums in money, or even accept notes for deferred payments of premiums, he is therefore authorized to accept other kinds of property. The accepting of property in payment of indebtedness by agents authorized to collect is so much aside from the current of commercial affairs that one dealing with an agent, knowing him to be such, who makes payment to him in property, has the burden of showing that he was authorized to accept property in payment, or else that the principal ratified his act in so doing, or accepted the fruits of it. This cannot be shown by presumption alone. ’ ’

In the recent case of Allen v. Metropolitan Life Ins. Co., 179 Minn. 545, 229 N. W. 879, the agent had likewise accepted merchandise in lieu of money as a premium payment. Under a Minnesota statute (G. S. 1923, sec. 3757), an agent negotiating insurance is held to be “the company’s agent for the purpose of collecting or securing the premiums therefor.” After quoting this provision of the statute, the court said (p. 547): “But that implies no authority in the agent to accept payment in anything but money, unless he is authorized by the company to do so, as sometimes is the case with premium notes. He is not authorized to accept washing machines or other merchandise nor to agree that the premium or any part of it shall be applied on Ms own debt. No express authority of that kind is claimed. There can be no other, for ‘it is an elementary principle, applicable alike to all Mnds of agency, that whatever an agent does can be done only in the way usual in the line of business in which he ■ is acting. There is an implication to tMs effect arising from the nature of his employment, and it is as effectual as if it had been expressed in the most formal terms. It is present whenever his authority is called into activity, and prescribes the manner as well as the limit of its exercise.’ Hoffman v. John Hancock Mutual Life Ins. Co., 92 U. S. 161, 164, 23 L. Ed. 539,” and other authorities cited.

The rule in Illinois is not at variance with the foregoing decisions, although there are no cases precisely in point. In two cases where the premium on a policy was paid to the agent, partly in cash and partly in merchandise, the Supreme Court of this State indicated that if the cash payment had not been sufficient to satisfy the net claim of the company, the policy would not have been binding. The first of these is Lycoming Fire Ins. Co. v. Ward, 90 Ill. 545, where the court, in discussing the rule, said (pp. 549, 550): “It may be true that the amount which was received by Puschman out of plaintiff’s saloon can not be regarded as a payment on the policy, but it does not appear, from the evidence, whether this sum was to be applied in payment of the policy in suit, or the other one contracted for at the same time, and as the amount paid in cash was more than enough to pay the premium on this policy, we see no ground for holding that the premium was not all paid in cash. But independent of this, Puschman was entitled to commissions for procuring the insurance, as a broker, and if he saw proper to take out his commissions in the saloon, we know of no reason or authority to debar him from so doing.” '

The other case is John Hancock Mut. Life Ins. Co. v. Schlink, 175 Ill. 284, wherein the appellant contended that the agent, in the absence of express authority, could not accept anything but cash in payment of the premium, or any part thereof. In discussing this contention, the court said (pp. 291, 292, 293): “It will be remembered that the premium in this case amounted to the sum of $63.70. Of this amount Ballance (the agent or broker) was entitled to retain, as his commission, seventy or seventy-five per cent, which would leave less than $20 going to the company. Ballance received $25 in cash, — enough to pay the company the amount it was entitled to receive and $5 in addition. The question then presented is, whether Ballance had the right to receive of the insured the amount which was going to him in anything but money. . . . In Lycoming Ins. Co. v. Ward, 90 Ill. 545, where the agent accepted a part of the premium in goods as a part of his commission, it was held the payment was binding on the company. Here Ballance was authorized to solicit the insurance from Schlink, and although the policy required the premium to be paid in cash, Balance had the right, so far as his commission was concerned, to waive the policy and accept his commission in property, if he saw proper to do so.”

In both Illinois cases the agents or brokers obtained sufficient cash from the insured to pay the net amount of the premiums to the company, and received credits only for those amounts which represented their commissions on the sale. The implication arising from these two decisions is that the court would not have sanctioned payment of the entire premium through the exchange of merchandise or personal services. The rule in all jurisdictions to which our attention has been called, without exception, is generally to the effect that the acceptance by the agent or broker of something in lieu of money or its equivalent for insurance premiums renders the agreemént invalid. The reasons therefor are inherent in the basis on which the insurance business is conducted, as the courts say, and in the law of agency which does not sanction, by implication, the right of an agent or broker to enter into such a contract because, among other reasons, it would “introduce a principle subversive of good morals and good honesty, and intended to sap the ability of companies to pay their legitimate losses.” (Clingerman v. Pheasant, 18 Pa. Co. Ct. 203.)

Plaintiff’s counsel argue that since defendant company allowed Wanek 60 days in which to collect and remit premiums on policies which he sold, the exten- • sion of credit to him relieved insured of the obligation of paying for the policy. This contention is untenable, because insured remained primarily liable. To be sure, Wanek had 60 days in which to remit the premium, but only in the event that he collected it. (Columbia Ins. Co. v. Loebs' Ins. Agency, 187 Ill. App. 289.) If the insured did not pay, the company could either cancel the policy or allow it to remain in force until the premium was fully earned, and then bring suit for the collection thereof. But under no circumstances could the company collect from the broker or agent unless he had received payment. The primary obligation of the insured to pay the premium, remained unchanged regardless of the arrangement • between the company and the agent. Counsel for the respective parties are not in accord as to whether Wanek was an agent or broker, and it is argued by plaintiff that the rule of law announced in the decisions hereinbefore cited is not applicable to brokers, but rather only to agents. The courts make no such distinction. In some of the cases the agreement to accept goods or services in lieu of cash was made by agents and in others by brokers, but the same rule of law is applied by the courts to both.

It is further contended by plaintiff that the company is estopped from denying the validity of the policy, because it permitted the same to be in force from April until November, 1937, and the trial court was evidently of opinion that since Wanek was the agent who secured the policy for plaintiff, the receipt which he gave to Elowe was binding on defendant and would estop it from claiming that the policy was invalid. In several of the cases heretofore discussed the agent for the company issued a receipt acknowledging payment of the premium, as in the present case; nevertheless, the courts in each instance held that no valid contract of insurance had been entered into. Moreover, estoppel is an equitable doctrine which presupposes knowlege of the illegal or unauthorized act, and is founded upon equitable considerations for the promotion of justice. (Hempstead v. Broad, 275 Ill. 358.) And where silence is the ground of the estoppel it is essential that the party estopped should have knowledge of the facts and the other party be ignorant of the truth and be misled into doing that which he would not have done except for such silence. (Fyffe v. Fyffe, 292 Ill. App. 539; Bigelow on Estoppel, 467.) It must be conceded that in the case at bar the company knew nothing of the arrangement entered into between Wanek and Elowe, and therefore the doctrine of estoppel has no application to the circumstances of this case.

Neither would the fact that approximately 8 months intervened between the issuance of a policy and the loss by insured, alter the situation of the parties, because of Wanek’s request that the company cancel the policy for nonpayment of premium. It is urged that the refusal or failure of the company to cancel the policy, as requested, affords further ground for estoppel. It seems to us, however, that the defendant was under no obligation to cancel the policy when it learned that plaintiff had failed to pay the premium, but was fully justified in advancing credit to plaintiff if it saw fit. The obligation to pay the premium is a continuing one. In the event that it is not paid at or after the issuance of the policy, the cancellation provision gives the insurer; an option to cancel the policy or to permit it to remain in force until its maturity, with the right to then bring suit against insured for the unpaid premium. This constitutes a debtor-creditor relationship, and the company was free to allow this relationship to continue until the premium had been fully earned. Defendant chose the latter course, and by so doing it neither condoned nor ratified the agreement between Wanek and Elowe as to payment of the premium in personal services, because it had no knowledge thereof, nor did it subject itself to the charge of estoppel.

The remaining contention that failure of plaintiff to furnish proof of loss, as required by the terms of the policy, bars the right of recovery, is of secondary importance, in view of the conclusion hereinbefore reached, and therefore need not be discussed.

We think the court erred in finding in favor of plaintiff and entering judgment accordingly. " For the reasons set forth, the judgment of the municipal court is reversed and judgment is entered here in favor of defendant, and against plaintiff, and for costs.

Judgment reversed and judgment here in favor of defendant and against plaintiff, for costs.

Scaxlan and John J. Sullivae, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Friend

license: Public Domain

text:
    In re Estate of Sarah Flynn, Deceased. Oak Park Hospital and Training School for Nurses of the Sisters of Misericorde, Appellant, v. Nellie Flynn Lorke, Administratrix of Estate of Sarah Flynn, Deceased, Appellee.
    Gen. No. 41,146.
    Opinion filed December 30, 1940.
    Ryan, Condon & Livingston, of Chicago, for appellant; John M. Tuohy, John J. Elward and Robert I. Livingston, all of Chicago, of counsel.
    Black & Beermann, of Chicago, for appellee; Benjamin H. Black, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

Oak Park Hospital and Training School for Nurses of The Sisters of Misc.icorde, a corporation not for profit, sole legatee under a will executed by Sarah Flynn, appeals from an order of the circuit court affirming an order of the prohate court, denying a petition for probate of decedent’s will.

There is substantially no dispute as to the facts. The last will and testament of Sarah Flynn was duly executed and witnessed in the manner required by law October 31, 1924, and it is conceded that it was at one time a valid will. Sarah Flynn bequeathed all her estate to petitioner, to the exclusion of two sisters, a brother, two nephews and two nieces. The attesting witnesses gave their oral depositions upon the hearing, and the will was offered in evidence. It appeared from the evidence, however, that subsequent to its execution the signature of the testatrix had been scribbled through with a pencil, and on the margin of the will there appeared in pencil the following legend: “Cancelled 10-28-27.” The question presented is whether these circumstances constituted a revocation of the will by the testatrix. Both the probate and circuit courts, after full hearings, were of opinion that the will had been revoked.

Upon the death of Sarah Flynn, January 4, 1938, her will was found in a box of the Avenue Safety Deposit Company, in Oak Park, Illinois, by Sol Schiff, an inheritance tax examiner for the State of Illinois, who testified upon the hearing that when he took the will from Sarah Flynn’s box, during the course of his examination, Miss Flynn’s signature had been scribbled through with pencil marks, that the words “Can-celled 10-28-27,” written in pencil appeared on the margin of the will, and that the will was in the same condition when introduced in evidence as when he found it in the safety deposit box after Miss Flynn’s death. After completion of his examination of the contents of the box Schiff delivered the box with its contents to A. E. "Walter, cashier of the Avenue State Bank of Oak Park, Illinois, who was also secretary of the safety deposit company, located in the same building with the bank.

A. E. Walter testified that although he had not heen personally acquainted with Sarah Flynn, he knew that she had rented a vault box, of which she was the lessee on the date of her death; that he was acquainted with Schiff, who had made an examination of the contents of the box January 8, 1938, and that shortly after the examination Schiff delivered the purported will to him; that it was then in the same condition as at the time of the hearing, and that he, Walter, turned the document over to Moore M. Peregrine, attorney for the bank, who subsequently filed it for probate.

It further appears from the evidence that Sarah Flynn had the sole and exclusive right to enter the box, and that between the interval from April 28,1927, and December 11, 1937, she had entered the box 192 times. One of the dates on which she had had access thereto was October 28, 1927, which is also the date written on the margin of the will. From that date and until her death, January 4, 1938, she had entered her deposit box 186 times.

During this entire period no one other than Sarah Flynn had ever had access to the safety deposit box, with only one exception; on the day prior to her death she had deputized Gertrude W. Gilmour, who had employed Sarah Flynn as a practical nurse during her lifetime, to withdraw some cash from the box to take care of hospital expenses incurred by decedent. Mrs. Gilmour testified that in response to a telephone call on January 2, 1938, she visited Miss Flynn at the rooming house where she resided; that upon the request of Miss Flynn she arranged for her admittance to the West Suburban Hospital, where she stayed until her death. January 3 she told Mrs. Gilmour that she had left her savings account book in the box at the Avenue State Bank and requested her to proceed to the box and take out the book and arrange for the withdrawal of cash with which to take care of her hospital expenses; that Mrs. Gilmour then procured from Miss Flynn a certificate vesting Mrs. G-ilmour with authority to enter the safety deposit box and transact the business with which she was entrusted. Mrs. Gilmour took the signed authority to an officer of the Avenue State Bank, who made arrangements for her to enter the box and remove the savings account book. She testified that she went to the box with an attendant, and with the key which had been given to her by Miss Flynn and a duplicate key in possession of the attendant, the box was opened; that she brought the box to a table just outside the door; that she then removed the savings account book at the table with the attendant standing close by, without touching or looking at any of the other contents of the box, and returned the box to the attendant, who replaced it in the vault. Miss Flynn’s key was then returned to Mrs. G-ilmour, who used the bankbook for the purpose of withdrawing cash from Miss Flynn’s account. According to Mrs. Gilmour’s undisputed testimony she neither saw nor handled any of the other contents of the box except the bankbook.

The legend on the margin of the will was written there in pencil by Fred R.. Johns, president of the Oak Park Safe Deposit Company. He testified that in October, 1924, he was trust officer of the bank with which he had been associated for about 25 years prior thereto. He was acquainted with Sarah Flynn during her lifetime, and characterized her as “a friend of mine.” She had an account at the bank and consulted Johns at various times about different matters. Upon an examination of the will, Mr. Johns testified that the words, “cancelled 10-28-27,” were in his handwriting, and that the legend was placed there by him October 28, 1927, some 10 years prior to the date on which he testified at the hearing. He did not remember much about the circumstances under which it was placed there, but said that ‘ ‘evidently she brought in the will when she scratched out the name here with her own marking and told me she wanted the will canceled, and I wrote the word ‘Cancelled’ and marked the date on it. I have no recollection of it. That is the way I presume it was done.” Johns had no recollection of any conversation had with Sarah Flynn at the time, nor was he able to say that Sarah Flynn had made the markings through her signature on the will, but he was definitely certain that he had placed the legend on the margin of the will and that it was in his own handwriting.

Upon this state of the record, the question arises whether the will was revoked in compliance with chapter 148, entitled, “Wills” (sec. 17, par. 19, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 110.23]), which reads: “Manner of revoking will. No will, testament or codicil shall be revoked, otherwise than by burning, canceling, tearing or obliterating the same, by the testator himself, or in his presence, by his direction and consent, or by some other will, testament or codicil in writing, declaring the same, signed by the testator or testatrix, in the presence of two or more witnesses, and by them attested in his or her presence ; and no words spoken shall revoke or annul any will, testament or codicil in writing, executed as aforesaid, in due form of law.”

From the undisputed circumstances of the record it appears that Sarah Flynn had entered her safety deposit box on October 28, 1927, and had evidently taken the will therefrom over to Fred R. Johns, whom she knew and frequently consulted, as he testified, and on the same day the legend ‘ ‘ Cancelled 10-28-27 ’ ’ was written in pencil by Johns on the margin of the will. He testified about 10 years after this event, and had no definite recollection of what had transpired, but there can be no doubt that this legend was placed on the margin of the will by Johns at the direction and request of Sarah Flynn. She had evidently taken the will to him on that date, had had some conversation with him which is not disclosed by the evidence, with the result that these words were written by him in pencil- on the margin on that date. "Whether she scratched out her name at the time, or whether she did so or directed some one else to do it for her, is left to conjecture, but there can be no doubt that the words, “Cancelled 10-28-27,” were placed there by Johns at her direction; otherwise there is no plausible explanation for the pencil notation, and in fact Johns testified that “he would not have put that on there without her request.” When Schiff examined the contents of the safety deposit box he found the will in the same condition as when it was introduced in evidence, with the signature scratched out and the pencil notation, “Cancelled 10-28-27,” appearing on the margin, and in his written report he made the following notation: “Will of Sarah Flynn, dated 10-31-24, 2 pages, signature on above will scratched out by pencil and notation on bottom of page (Cancelled 10-28-27).”

It is not even suggested that Mrs. Grilmour, who was the only one other than Sarah Flynn that ever had access to the box during these many years, had anything to do with the mutilation of the signature on the will. Her testimony is clearly to the effect that she was specially deputized to enter the box for a specific purpose and that she carried out her mission in the open vault with an attendant standing nearby, on the day preceding Sarah Flynn’s death. It must be conceded- that Sarah Flynn entered the vaults of the safety deposit company and was admitted 192 times from April 6, 1927, until December 11, 1937; that one of these dates was October 28, 1927, which was the same date on which Johns placed the pencil notation on the margin of the will, and the will having been found in her box it is fair to assume from the record that between October 28, 1927, and the date of her death in January, 1938, she either saw or had the opportunity of inspecting the instrument in its revoked condition at least 186 times. After her death the will is traced from the time it was found by Schiff in the box until it was filed in the probate court and introduced in evidence, and its condition and appearance, with the cancellation marks thereon, remained the same during all this time. There is no suggestion and no reasonable ground to suspect that any of the persons that handled the will following Sarah Flynn’s death until it was filed in the probate court and introduced in evidence later in the circuit court had anything to do with the mutilation of the instrument.

Notwithstanding these facts petitioner contends that the will having been duly executed and witnessed in the manner provided by law, a prima facie case was established in favor of the will and that there was no evidence offered by the administratrix who resisted the probate of the will which in any way overcame the prima facie case; that there was no evidence that the will was revoked by any of the methods provided by law, and that under the circumstances no presumption of a revocation arises. Outside of the single visit of Mrs. G-ilmour to the vault, the exclusive control of the vault remained in Sarah Flynn throughout her lifetime. In Cantway v. Cantway, 315 Ill. 244, where the will had remained in the testator’s possession until his death and was found among his papers partially canceled by the erasure -of the name of the devisee and the substitution of another name, the court held that by reason of the exclusive control of the document by the testator “the presumption is that such cancelation and substitution were the acts of the testator, done with the intenion of revoking the will as originally made.” In Marshall v. Coleman, 187 Ill. 556, the court said (p. 579): “Where a will is found in a mutilated condition in the possession of a testator after the latter’s death, and there is no evidence to fix the spoliation on any other person, the court will presume that it was done by the testator with the intention of canceling the will.” A full discussion of the question under consideration appears in 62 A. L. R., p. 1372, under the heading, “Presumption as to Intent,” and the authorities there cited are apparently in accord in holding that “if the will remains in the testator’s possession until his death, and is then found among his papers with erasures, alterations, or cancelations upon it, or it is torn, the presumption is that such act, manifest upon the will, was done by the testator with the intention to revoke it. ’ ’ We think the circumstances of this case fall within this rule. There is no other plausible explanation for the mutilation of the signature and the presumption as to the intent of Sarah Flynn to have the instrument canceled October 28, 1927, may be fairly invoked from the circumstances. The pencil notation in Johns’ handwriting fortifies this presumption as a circumstance directly bearing on Sarah Flynn’s intent to revoke the will. The burden cast upon the administratrix to show a revocation is sufficiently met by the evidence and presumption of intent arising under the law applicable to the cause.

Petitioner’s counsel cite numerous cases in support of their contention that the words, “Cancelled 10-28-27,” on the margin of the will cannot operate as a revocation, since they were not written by the testatrix. The statute does not require that the testator shall perform the manual revocation, but simply provides that the will may be revoked by “canceling ... by the testator himself, or in his presence, by his direction and consent . . . .” If Sarah Flynn directed Johns to cancel the will for her that would be a sufficient compliance with the statute, and we think the evidence can be interpreted in no other reasonable way.

The judges of the probate and circuit courts, who heard the case, were of opinion that the will had been revoked by Sarah Flynn October 28, 1927, and after a careful review of the evidence and the law applicable to the circumstances, we are of opinion that both courts properly held that the instrument was not the last will and testament of Sarah Flynn. Therefore, the order denying probate thereof is affirmed.

Order affirmed.

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


text:
    Anna Mae Hoover, Appellant, v. Adrian Leslie Hoover, Appellee.
    Gen. No. 41,477.

      Opinion filed December 30, 1940.
    Schnackenberg, Hansen & Towle, of Chicago, for appellant; Elmer J. Schnackenberg, of counsel.
    Edward S. King, of Chicago, for appellee; Leo O. McCabe, of Chicago, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

Under a separate maintenance decree entered October 21, 1927, finding that defendant had committed adultery with one Maye T. Hanley as charged in the bill, the court awarded plaintiff for her support $200 a month until the further order of the court. This sum was regularly paid by defendant, until, pursuant to a petition filed by Mm March 26, 1940, the monthly payments were reduced. After defendant had filed his petition seeking to reduce the amount of the monthly payments plaintiff filed her petition asking for an increase in the amount awarded her under the original decree and both matters were heard at the same time. After a full hearing the court reduced defendant’s payments to $100 a month, commencing April 1, 1940, and plaintiff’s petition for an increase was denied. From this order plaintiff appeals.

The parties were married in 1914 and separated in 1925. Their only child, Mary Jane, was born in 1920 and became of age in 1938. The union was apparently a happy one until November, 1925, when plaintiff discovered her husband and Miss Hanley in bed in the Statler Hotel at Detroit, Michigan, in the early morrnng of November 22, 1925, both of them clad in night attire. Upon the hearing of plaintiff’s bill for separate maintenance she advised the court that she was willing to live again with defendant, but he refused to resume the marital relationship. Because of her religious views she did not want a divorce, even though a prior chancellor, before whom the case was tried, sought to induce her to take a divorce instead of a decree for separate maintenance.

The decree entered in 1927 recites that defendant refused to offer any evidence, that defendant on November 22, 1925, committed adultery with Maye T. Hanley, that since that date plaintiff had been living separate and apart from defendant without her fault, and the court awarded $200 a month “for the complainant for alimony and support,” placed the custody of the child with the mother and gave the father the privilege of visiting his daughter at all reasonable times.

Defendant, who is about 50 years of age, has been a practicing attorney in Chicago for more than 20 years, and since 1924 has been associated with the law firm, of Kirkland, Fleming, Creen, Martin & Ellis. His earnings, including a drawing account and bonuses for the years 1924 to 1940 inclusive were as follows: 1924— $5,000; 1925 — $6,500; 1926 — $8,000; 1927 — $9,000; 1928 — $10,000; 1929 — $11,000; 1930 — $12,000; 1931— $14,000; 1932 — $21,000; 1933 — $14,650; 193^-$17,600; 1935 — $15,250; 1936 — $16,000; 1937 — $14,000; 1938— $15,000; 1939 — $14,000; for the months of January, February and March 1940 — $3,499.98. From 1931 to 1940 inclusive his drawing accounts were substantially $14,000 a year. These sums were supplemented by bonuses paid him from 1932 to 1938, which considerably enhanced his aggregate income during those years. His total receipts from 1927 through March, 1940, amounted to $187,000.

At the time of the hearing in 1940, defendant had on deposit in several Chicago banks the aggregate sum of $22,548.36. His safe-deposit box contained some certificates of deposit for bonds, several shares of Swift International stock and his insurance policies, of which there were four in number, aggregating $35,000. Three of these policies designate Miss Hanley as beneficiary, if living, and if not living, then his daughter, Mary Jane. A $20,000 policy calls for monthly payments to defendant, if he is living in 1949. The fourth policy for $10,000, named as beneficiary of an educational fund his daughter, Mary Jane, or in case of her death, Miss Hanley. The total cash surrender value of these policies on June 24, 1940, was $11,629.40. It further appears that defendant owns an one-half interest in vacant property in Hollywood, Florida, upon which the taxes are paid and for which he paid $2,500 in 1925, and a new automobile priced at about $1,200.

In 1933 defendant bought three lots fronting on Lake Michigan, at Long Beach, near Michigan City, Indiana, for which he paid $3,600. Afterward he erected on this property a seven-room residence with furnace heat at a cost of approximately $10,000. Title to the property is in Miss Hanley. Over the garage entrance there is affixed the words “Ha-Hoo,” consisting of the first two letters of “Hanley,” and the first three letters of “Hoover.” Miss Hanley testified that this home was a gift to her for the care and attention she had given defendant since 1925. The house is open for occupancy from the latter part of April until the end of October and Miss Hanley testified that she lived there with defendant whenever he was able to come out. Before the house was built defendant had rented a place in Long Beach, Indiana, where he and Miss Hanley spent the week-ends together.

It appears from the evidence that Miss Hanley worked and maintained herself until 1932, but has been unemployed since then, and now has no visible means of support other than contributions by defendant. She has a safe-deposit box in her name, to which defendant has access under a power of attorney, but the record does not disclose the contents of the box. For eight years prior to April, 1940, she resided in an apartment at 6348 Kenwood avenue, consisting of four rooms. It is admitted that defendant paid the rent for this apartment at the rate of $50 a month. On the mail box appeared the names of Maye T. Hanley and Hoover. Miss Hanley moved from the apartment in April, 1940, at. just about the time the petition for reduction of payments was instituted, and she now calls Long Beach her home. During the years that Miss Hanley lived on Kenwood avenue, defendant resided in the nearby Mayflower Hotel, at 6125 Kenwood avenue, and admitted visiting her in her apartment two or three times a week.

Defendant contended before the chancellor upon the hearing of his petition for the reduction of separate maintenance payments that he had severed his connection with Kirkland, Fleming, Green, Martin & Ellis because of his health, which he said had never been “real good.” He complained of stomach trouble and about eight years before the hearing was confined in Wesley Hospital with a nervous condition in his legs. To relieve this ailment he took physiotherapeutic treatments during the intervening years from one Folke Lindberg, who testified that defendant had come to his office once or twice a week for massage and heat treatments. When defendant returned from his vacation after Labor Day in 1939 he called on Dr. Ralph Brown, who could not find any organic ailment to explain defendant’s nervous condition. After keeping defendant at a hospital for almost a week, Dr. Brown called Dr. Peter Bassoe, a nerve specialist, in consultation. Dr. Bassoe found no organic ailment, but from a conversation with defendant concluded that he was in a worried state of mind and felt himself incapable of attending to his practice. He had- crying spells and seemed concerned about his law business and his marital difficulties. The ailment was characterized by Dr. Bassoe as “anxiety neurosis,” and he was of opinion that defendant was not in condition to work as a lawyer and would be incapacitated as long as his marital difficulties continued to exist. Dr. Bassoe testified that a man living in a clandestine relationship with a woman not his wife would be subject to the condition known as anxiety neurosis. Dr. Brown did not testify at the hearing.

Shortly before Christmas 1939, when defendant was about to leave for Florida with Miss Hanley, he sent a letter to his daughter reading in part as follows: “I have accordingly turned over my personal affairs to Mr. Lewis E. Pennish, an attorney friend of mine of long standing, located at 110 S. Dearborn St. (telephone Andover 1900) and if you or your mother should care to get in touch with me while I am away, would suggest that you communicate with him.” Defendant made no payments to plaintiff under the decree after the one due January 1, 1940, except under compulsion of a rule to show cause issued in March, 1940. He did, however, continue to receive $1,166.66 a month from the firm with which he was associated for the months of January, February and March, 1940, and gave Miss Hanley her apartment rent of $50 a month for January to April, 1940, inclusive.

Defendant and Miss Hanley drove to West Palm Beach, Florida, late in December, 1939, and remained there until the early part of April, residing in a furnished house for which defendant paid $600 rent. He also paid all expenses of the trip, as well as living expenses at West Palm Beach.

After the foregoing letter was written to Mary Jane and after defendant and Miss Hanley had gone to Florida, Mr. Pennish on January 8, 1940, at his office gave plaintiff a check for the last maintenance payment and there had a conversation with her pertaining to her domestic difficulties with defendant. The court excluded the conversation between Pennish and Mrs. Hoover, and she assigns this as error. The gist of the conversation is embodied in an offer of proof made by her counsel upon the hearing and is to the effect that Pennish then advised her that defendant did not intend to keep up the payments any longer and desired to obtain a divorce. In response to her question as to what was to become of her plaintiff offered to prove that Mr. Pennish replied, “Well, I don’t know. How do you know that he hasn’t turned over all of his assets and property to Miss Hanley? I don’t know, it might be he could pay as high as $7,500 if you would get a decree of divorce and release him from future obligations.” In reply to this remark she advised Pennish that she had been a lifelong member of the Boman Catholic church which does not favor divorces. The objection of defendant’s counsel to the admissibility of the conversation was that “there was nothing in the exhibit (the letter from defendant to his daughter) to indicate an agency.” We think it was error to exclude the conversation on this ground, since the letter evidently clothed Pennish with authority, he having been designated therein as “an attorney friend of mine of long standing” to whom defendant had “accordingly turned over [his] personal affairs.” There is no reasonable explanation why defendant should have turned over his personal affairs to his friend and attorney and suggested that Mary Jane or her mother might communicate with Mr- Pennish, except to invite a discussion of his personal affairs between Pennish and his wife. Having rejected the offer, we must assume that the court did not consider the evidence offered. It should have been considered, however, because it was competent and material to the contention made by plaintiff all through this proceeding that defendant’s effort to have the payments reduced sprang from a plan to force a divorce upon her rather than from his inability to continue the $200 monthly payments for the reasons assigned.

Defendant had attended law school with Mr. Martin of the firm of Kirkland, Fleming, Green, Martin & Ellis, who was responsible for defendant’s employment by the firm in 1924. In 1931 Hoover was assigned to the work of liquidating banks, which has recently slackened off, and it was his contention that his nervousness and illness and the slackening off of work in which he had specialized, resulted in his discharge. Plaintiff’s counsel earnestly insist that the evidence fails to sustain the finding that Hoover had lost his position, but that the reasonable inferences to be drawn from the evidence point rather to the conclusion that there has been only a temporary severance of the relationship pending the outcome of this litigation. The evidence upon which this contention is based may be summarized as follows: The firm had granted defendant a leave of absence for his Florida trip. Shortly thereafter when pursuant to defendant’s suggestion plaintiff called at Pennish’s office Mr. Martin came in during the conversation which ensued and it is argued that Pennish’s negotiations with plaintiff were known to Mr. Martin. The firm continued to make monthly-payments of $1,166.66 to defendant until April 1, 1940. The hearing on defendant’s petition wás set for April 19, 1940, but no member of the firm appeared in open court to support defendant’s contention that his connection with the firm had been permanently severed. On the other hand, it appeared from defendant’s own testimony that after his return from Florida April 15, 1940, Mr. Pennish delivered to him a letter from Mr. Martin which indicated that his status with the firm was “uncertain,” and contained the suggestion that Mr. Martin would discuss it with defendant whenever he decided to come in and talk about it. Mr. Carl Krah, who has long been office manager of the firm, called as a witness on behalf of defendant, testified that Hoover was not then employed and that there was no arrangement for his re-employment. Although it was admitted that defendant had received the letter from Mr. Martin, Krah testified that he was unaware of any such letter having been written. He admitted, however, that Mr. Martin may have intimated that later on the firm would be glad to discuss the matter of re-employment with defendant.

The legal aspects of the case present no difficult problems. It may be conceded that the court has jurisdiction and authority to alter the provisions of a decree respecting payment for alimony or separate maintenance, where a change in the circumstances or conditions of either party so requires. The law is also well established that the alteration of an order respecting payments rests in the sound judicial discretion of the trial court, and unless the record shows an abuse of that discretion such an order will generally not be disturbed on review.

Defendant seeks to justify the modification of the decree on two grounds: (1) that his physical condition has impaired his usefulness as an attorney and his discharge by the firm has cut off his income, with the result that the continued payment of $200 a month will diminish in a comparatively short time the principal of the estate from which income is derived, and exhaust the principal of his estate which should be preserved for the joint benefit of himself and his wife; and (2) that the allowance of $200 in the original decree was based upon the support of Mrs. Hoover and Mary Jane, and that since the latter has now become of age so that defendant is no longer legally obligated to support her, the sum of $100 a month is ample to provide for the actual wants of Mrs. Hoover. The only case cited in support of the first proposition is Harding v. Harding, 180 Ill. 481. That was a bitterly contested proceeding, wherein many questions of law and fact were at issue. One of the issues related to the propriety of an allowance made to Mrs. Harding and the court, in discussing this question, said (p. 522); “It is undoubtedly the rule, where there is no income and the payment of the allowance will diminish the estate from which the income is derived it will not ordinarily be permitted to extend beyond providing for the actual wants and necessities of the wife.” (Italics ours.)

It is argued that notwithstanding his loss of income as a practicing attorney he is nevertheless required by the modified order to pay the monthly sum of $100 for his wife’s support and an additional like amount for his own living expenses, together with $125 a month as premiums on four insurance policies aggregating $35,000, and his counsel say it is quite apparent that the trial court fixed an amount to be paid by him which was equivalent to the reasonable value of the possible income of his estate, so as “to preserve it from depletion or consumption at too rapid a pace, for plaintiff’s interest as well as defendant’s.” We have no quarrel with this theory of law where it has some pertinent application to the facts of the case, but the record in this proceeding is replete with evidence indicating that for the past ten years or more defendant has given no thought to preserving his estate for the benefit of his wife or of her future welfare. While she had been living with her daughter in a three room kitchenette apartment, where it is impossible for,either of them to retire at night when the other is entertaining company because of limited sleeping and living facilities, defendant purchased from the assets of his estate a $13,000 summer home which he has maintained for himself and Miss Hanley. In addition thereto he had his own living quarters and a four room apartment which he maintained for Miss Hanley in proximity to his own living quarters. ' He has paid from his income the premiums on the four insurance policies, designating Miss Hanley as beneficiary and making not even a contingent provision for his wife in the case of Miss Hanley’s death. In 1939 he took Miss Hanley on a three month vacation to Florida, where the rental of a home, without considering any of the other expenses of the trip, amounted to $600. Some approximation of the total expenses of that trip may be gained from the fact that in December, 1939, he drew checks totaling $2,711.66 on one bank, and in January, 1940, withdrew from his account the sum of $1,180.41. It is undisputed that Miss Hanley has not been employed since 1932, and has no visible means of support or income, and, although there is no direct evidence of the fact, it may be inferred from the record that one of two contingencies exist: (1) either defendant is paying her living expenses and maintaining her on a considerably higher plane than his own wife out of his income or estate, or (2) she has sufficient income from possible assets in her safe-deposit box to which defendant has access to supplement expenses for her support which defendant has voluntarily assumed. The argument that “she is as much ' interested as he is in the preservation of his estate,” is negatived by all the circumstances of this case; if the estate is being preserved at all, it is for the benefit of Miss Hanley and not Mrs. Hoover.

In the view that we take it is not necessary to determine whether defendant’s career and earning power has been fully or permanently impaired, although there would seem to be considerable doubt that the usefulness of a man at the age of 50 who is suffering from nothing more than “anixiety neurosis,” due to his clandestine relationship with another woman, would contemplate retirement as his counsel argue, or that the firm for whom he has rendered such valuable and important services for many years would permanently discharge him from its employment for such trivial reasons as he assigns. It may be that at some time in the distant future, if his earning capacity has in fact been totally impaired, a petition such as he has filed might fairly be entertained, but with approximately $35,000 or $40,000 in assets which can be readily liquidated, not including the summer home at Michigan City which Miss Hanley claims as her own,, we think the court was utterly unwarranted in decreeing the reduction of his wife’s maintenance.

Assuming that Harding v. Harding, 180 Ill. 481, reflects the correct rule of law in Illinois, the record made by plaintiff in opposition to defendant’s motion shows that it would be extremely difficult for Mrs. Hoover, who has now reached the age of 53, to get along on less than she has been receiving; and even though there should be no income or an insufficient income from defendant’s estate the continuance of the $200 monthly payments will not diminish the estate “beyond providing for the actual wants and necessities of the wife.” (Harding v. Harding.) Mrs. Hoover testified that her rental amounts to $50 a month. She does her own housework. Her telephone, gas, electricity and fire insurance approximate $15 a month. She testified that in spite of the fact that she wears her clothes “from one year to the other,” and fixes them herself, they cost her about $10 or $11 a month. She has for a long period had sinus infection, resulting in arthritis which has crippled her fingers, her arm and her back. This has made it difficult for her to hold objects while working and has rendered her left hand useless for any gainful service. As a result of this ailment she has been constantly taking treatments from a physician to whom she has paid approximately $20 a month in addition to medicine which costs her $10 a month. Her physician thought that the arthritis may have been caused by her teeth and accordingly she has taken treatments for pyorrhea, and in addition thereto had a partial plate made in October, 1939, for which she paid $150. She incurs some expenses for moderate entertainment — lectures and moving picture theatres. Her furniture and rugs have required repair and replacement from time to time, and her personal expenses, such as carfare, hair dressing, storage and insurance for her fur coat, which is ten years old, and many other necessary and incidental expenses, aside from her grocery bills, which run to approximately $50 a month, total well over $200. Since the modified order has been in effect she has found it necessary to borrow $700 from relatives — $500 from her brother, William Summers, and $200 from her sister, Mrs. Higgins. None of this evidence is in dispute, and although defendant’s counsel cross-examined Mrs. Hoover quite extensively, it is apparent from the evidence that her actual wants and necessities require at least the sum provided for in the original decree.

The second contention that the allowance of $200 in the original decree was provided for the maintenance of Mrs. Hoover and the support of Mary Jane is not supported by the record. The chancellor who originally heard the case [and not the court who entered the modifying decree] severely criticized Mrs. Hoover for invoking the separate maintenance statute and refusing to accept a divorce, and although defendant offered no evidence by way of defense to the original bill the court held up the entry of the decree for about seven months, and when it was finally entered he awarded Mrs. Hoover $200 a month “for the complainant for alimony and support.” No mention is made of Mary Jane, except that she was placed in the custody of her mother, and although defendant introduced the original certificate of evidence upon which the decree was predicated in an attempt to show that the support of Mary Jane was included in the $200 award, the decree which the court had under advisement for seven months is silent on the subject. Under the established law of this State the support of minor children has always been regarded the natural obligation of both parents. At common law the father was held to be the one primarily responsible for the support of his children. Since the emancipation of the wife by law, however, she is held legally responsible for the support of their minor children equally with her husband (Purity Baking Co. v. Industrial Commission, 334 Ill. 586), and the duty of a father to support his minor child exists and can be enforced, even by the people, despite the existence of an adverse decree awarding the custody of the child to the mother, where the decree makes no provision for the payment of any sum for the support of the child. (Steele v. People, 88 Ill. App. 186.) With the exception of some minor gratuities at Christmas time, on birthdays and other occasions, and payment of Mary Jane’s tuition at school, the burden of supporting and raising Mary Jane has fallen entirely on Mrs. Hoover. Defendant has not even availed himself of his right to visit his daughter, and during the eight or nine years preceding the filing of the petition had seen her only once, and that was an accidental meeting at a funeral which she attended with her mother. When the original decree was entered defendant was earning only about $9,000 a year, and the sum of $200 a month was predicated on that amount. In subsequent years his earnings rapidly increased and although in the last ten years Mrs. Hoover would have been amply justified in applying for an increase in her allowance she struggled along on approximately one seventh of defendant’s income for herself and Mary Jane. During these years she has adjusted herself to a monthly income of $200, with considerable hardship, and it would be a strange doctrine indeed that would justify a court- in cutting that income in half upon so flimsy a showing as is indicated by the circumstances of this case.

Defendant cites several cases in support of his contention that the allowance of alimony and the modification of separate maintenance and alimony orders rests in the sound judicial discretion of the court. This is undoubtedly the law, but in every case that has been called to our attention the courts say that the doctrine must be exercised in view of the nature and conditions of the case. .This record shows no justification for the modification order, and without departing from the well-established doctrine for which defendant contends, we feel convinced after a careful examination, of the record that the modification order should not have been entered.

We have indicated that under the undisputed facts in the case Mrs. Hoover has had difficulty in getting along on $200 a month, and although defendant’s earnings during the last ten years would clearly have warranted a substantial increase, we feel constrained to deny the increase at this time in view of his contention that he is unemployed. If it should later develop that he resumes his relationship with the firm, or derives a substantial income from his profession from some other source Mrs. Hoover should feel at liberty to renew her application.

In the light of these conclusions we are of opinion that the order of the superior court appealed from should be reversed and that the cause should be remanded with directions to enter an order vacating the modification of the decree and allowing plaintiff to receive maintenance payments as heretofore provided in the original decree.

Order reversed and cause remanded with directions.

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