author: Mr. Presiding Justice Matchett

text:
    2063 Lawrence Avenue Building Corporation, Appellant, v. Gus Van Heck et al., Appellees.
    Gen. No. 42,247.
    Opinion filed December 21, 1942.
    Robert H. Holmes, of Chicago, for appellant.
    Joseph A. Ricker, of Chicago, for appellees.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This is an appeal by plaintiff from a decree entered December 29, 1941, awarding damages to defendant upon amended suggestions therefor on account of the alleged unwarranted issuance of an injunction. The proceeding is brought under sec. 12 of ch. 69 of Ill. Rev. Stat. (Ill. State Bar Stats. 1941, p. 1798 [Jones Ill. Stats. Ann. 109.360]). In its different phases this suit has been before this court and the Supreme Court. (2063 Lawrence Ave. Bldg. Corp. v. Van Heck, 305 Ill. App. 486 (Abst.); 2063 Lawrence Ave. Bldg. Corp. v. Van Heck, 377 Ill. 37.) The theory of the claimant will be best understood by a summary of prior proceedings.

Plaintiff corporation is the owner of an apartment building in Chicago. Defendants are the Flat Janitors’ Union and certain of its members. The union and defendants undertook to persuade the plaintiff to employ a union janitor to care for its building, or at least to induce the janitor performing the services to join the union. The corporation resisted and filed its bill in chancery for an injunction to restrain defendants from maintaining pickets about its premises, charging intimidation, threats and violence. There was an amended complaint and an amended answer, and on motion of plaintiff a preliminary injunction was issued as prayed by Judge Niemeyer, November 13, 1937. January 29, 1938, defendants made a motion to dissolve the injunction. The cause with the motion was referred to a master, who reported in favor of the defendants and recommended the dissolution of the injunction and ismissal of the bill. The cause was heard on exceptions to his report. The exceptions were overruled, the report approved and on May 24, 1938, a decree was entered dissolving the injunction and dismissing the bill. The same decree gave leave to defendants to file suggestions for damages instanter, and the hearing was set for June 27, 1938. Such suggestions were filed and damage claimed for two items; $450 for solicitor’s fees and $119 said to have been paid for the services of a court reporter.

Plaintiff appealed from this decree to the Appellate Court. This court, after much consideration, reversed the decree and remanded the cause with directions to set aside the order dissolving the injunction and dismissing the bill (2063 Lawrence Ave. Bldg. Corp. v. Van Hech, 305 Ill. App. 486 [Abst.]). Defendants filed in the Supreme Court a petition for leave to appeal, which was denied (2063 Lawrence Ave. Bldg. Corp. v. Van Heck, 306 Ill. App. xxxvii (Abst.). The cause was redocketed in the superior court. It was reheard on the merits, and on December 5, 1940, that court entered a decree awarding a permanent injunction as prayed and taxed costs against defendants. Defendants appealed directly to the Supreme Court. (2063 Lawrence Ave. Bldg. Corp. v. Van Heck, 377 Ill. 37.) The opinion of the Supreme Court states: “Appellants contend that their constitutional rights have been infringed by this decree. ’ ’

' It is apparent on that theory the appeal was taken and allowed to the Supreme rather than to this court. The case was considered by the Supreme Court at the same term Ellingsen v. Milk Wagon Drivers’ Union of Chicago, Local 753, 377 Ill. 76, was decided. The opinion states: (page 39)

“In that case it is pointed out that by recent decisions of the Supreme Court of the United States, as the final arbiter, on issues involving questions of the Federal constitution, an injunction of the nature issued here may involve infringement of freedom of speech guaranteed by the fourteenth amendment of the United States constitution, whether the injunction be authorized by statute, ordinance or by rule of court. ’ ’

The defendants say that the reason of the Supreme Court for denying leave to appeal from the decision of this court was that the appeal taken to this court was interlocutory. That is not the fact. The decree reviewed by this court dismissed the complainant’s bill and was final in its nature. An examination of the briefs of the parties discloses that it was not at any time suggested by any of the parties that the appeal was in its nature interlocutory. It is apparent the Supreme Court regarded our judgment as not final since the cause was sent back for trial on the merits and it was so tried.

The opinion of the Supreme Court filed June 17, 1941, reversed the judgment of the superior court and remanded the cause “with directions to enter a decree in accordance with the views herein expressed.” The superior court of Cook county, in compliance with the order of September 23,1941, entered a decree vacating the decree of December 5, 1940, and the order of May 24,1938, dismissed the second amended complaint' for want of equity and gave defendants leave to file instanter amended suggestion of damages. Suggestions were filed.

The plaintiff answered the amended suggestion of damages setting up in detail reasons why the same should not be allowed. The court heard the evidence and found that defendants had expended the sum of $277.65 necessarily in securing dissolution of the injunction, composed of the following items: appearance fee paid the clerk of the Appellate Court, $10.00; cost of printing brief in the Appellate Court, $31.75; cost of printing answer to petition for rehearing in Appellate Court, $13.00; amount paid to the clerk of the Appellate Court for transcription of petition for leave to appeal, $6.00; cost of the filing fee in the Supreme Court on defendant’s petition for leave to appeal, $20.00; cost of printing abstract on leave to appeal in the Supreme Court, $39.80; cost of printing petition for leave to appeal in the Supreme Court, $64.05; cost of printing briefs on appeal to the Supreme Court, $57.05; appeal bond to Supreme Court, $10.00; cost of printing reply brief on appeal to the Supreme Court, $26.00, a total of $277.65. The court also found the sum of $1,260.00 had been paid by defendants as attorneys ’ fees; that the same was a fair, reasonable and proper sum; that the same should be allowed, making a total sum of $1,537.65 for which judgment was entered, in default of payment of which for 10 days it was ordered execution issue.

In support of the claim for fees the solicitor for the union testified in detail as to the work he did as such solicitor; his inspection of the several complaints, his preparation of sworn answers, the service of notice, the motion made to dissolve the temporary injunction, the reference to the master and the hearings before him, his reading of the master’s report, preparation of objections which stood as exceptions and arguing the same before the court, preparing the decree sustaining thé report, dissolving the injunction and dismissing complaint, examination of the transcript of record on the appeal to the Appellate Court, the filing of the briefs and the oral argument upon rehearing and upon the original hearing, the preparation of the abstract on petition for leave to appeal to the Supreme Court. In fact, he testified in detail to the performance of all the services rendered upon the trial of the cause upon the merits, the hearing in the Appellate Court, the petition for leave to appeal to the Supreme Court and the appeal finally taken to the Supreme Court. . There is no testimony in the record as to the time spent by him upon the motion to dissolve the temporary injunction nor as to the value of such services.

The respondent argues that in order to recover damages under the statute it is necessary for the plaintiff to prove that the obtaining of the injunction was a tortious act. We do not so construe the statute. It seems to have been designed to give to a defendant against whom an injunction issued, damages on equitable principles wherever the injunction issued was an infringement on defendant’s legal rights. The books are full of cases construing this statute. The leading case is Nestor Johnson Mfg. Co. v. Goldblatt, 371 Ill. 570, where prior cases are reviewed. The question in that case was stated to be: “In a case where both the final and preliminary relief sought is an injunction, and a temporary injunction has been issued, which was not dissolved pendente lite, and later a decree was entered on the merits of the main case dissolving the permanent injunction, and dismissing the suit, is defendant entitled to recover solicitor’s fees for services rendered on attempts to dissolve the temporary injunction and on defending the main case, before the chancellor and on appeals 1 ’ ’ Answering that question, the court said: (page 573)

“Section 12 of the Injunction Act relates to injtmctions ancillary in character, and provides, as we have seen, that the court, after dissolving such injunction and before finally disposing of the suit, shall hear the claim for damages. By this statute the General Assembly evidently intended to provide relief against wrongful issuance of an injunction. In this case, while the chancellor dissolved the temporary injunction on the first motion of appellants, who were defendants in that suit, the Appellate Court reversed the order of the chancellor and reinstated the injunction. That the temporary injunction was rightfully issued was settled by the Appellate Court decision. Its decision became the law in the case. When the second motion to dissolve the temporary injunction was denied, appel-' lants sought no review of that order in the Appellate Court and the order became final. ’ ’

The court further said: (page 574)

“Upon the completion of testimony and the decision of that issue, the temporary injunction previously issued was not dissolved but became functus officio. The chancellor gave no further consideration to it but determined the issuance of a perpetual injunction on the merits. As he ordered a perpetual injunction to issue, the temporary injunction was not thereby dissolved but became merged in the permanent injunction. (Gage v. Parker, 178 Ill. 455.) Had he denied the permanent injunction, the temporary injunction, having served its purpose and expired, could scarcely be said to have been dissolved by such order. Lambert v. Alcorn, 144 Ill. 313; Milligan v. Nelson, 188 id. 139. It does not follow that because the permanent injunction was eventually dissolved on appeal that the temporary injunction was not properly sued out. An interlocutory injunction is merely provisional in its nature and does not conclude a right. Its effect and purpose is to keep matters in statu quo until the hearing or further order. An applicant for an interlocutory injunction is not required to make out a case which will entitle him, at" all events, to relief at the hearing. It is enough if he can show that he raises a fair question as to the existence of the right which he claims and can satisfy the court that matters should be preserved in their present state until such questions can be disposed of.”

We are aware this case may be in many of its circumstances unlike the Nestor Johnson case, but the principles there stated are controlling. There is no evidence in the record showing what services were rendered or what the worth of these was in securing the dissolution of the preliminary injunction. On the contrary the evidence for claimant all shows that the i services for which it was allowed $1,260 were rendered in defending the bill on its merits in the several courts. The attorney’s fees, therefore, cannot be allowed. Much less, it seems to us, can the several items above recited being items of costs in the Appellate and Supreme Courts be recovered. The decision of the Appellate Court was against the decree dismissing the bill and the Supreme Court declined to review the judgment entered by the Appellate Court. These items were all necessary expenses in connection with the trial upon the merits rather than upon the motion to dissolve the preliminary injunction. These items were not recoverable. Leonard v. Pearce, 271 Ill. App. 428.

We hold the evidence for defendant fails to show right to recover for any of these items under section 12 of the Injunction Act, and the judgment will therefore be reversed.

Reversed.

O’Connor and McSurely, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    National Casualty Company, Appellant, v. Caswell and Company, Appellee.
    Gen. No. 42,219.

      Opinion filed December 21, 1942.
    Frank P. Kronenberg, of Chicago, for appellant; William P. Smith, of Chicago, of counsel.
    Irvin K. Russ, of Chicago, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff was surety on the bond of Franklin J. Kester as trustee, who improperly diverted trust funds to his individual use; plaintiff paid this loss of $1,456 and brought suit for this amount against the defendant charging that by its wrongful issuance of its check to Kester individually and not as trustee the defalcation was made possible and hence was liable to plaintiff. Upon trial before the court defendant, moved to strike the complaint and to dismiss the suit, which motion was allowed and plaintiff appeals.

Franklin J. Kester was trustee of the Central & Northwest Corporation and had in his possession as trustee a certificate of deposit; the defendant, which is 'in the investment securities business, purchased this certificate of deposit and issued its check in payment for $1,456, payable to the order of “Franklin J. Kester”; Kester delivered'the certificate of deposit to the defendant, having indorsed it as “ Trustee ’ ’; subsequently Kester appropriated to his own use the proceeds of this check and plaintiff, surety on his bond, made good the loss.

Defendant asserts that under the provisions of section 2 of the Fiduciary Obligations Act (Ill. Rev. Stat. 1941. ch. 98, par. 235 [Jones Ill. Stats. Ann. 135.07]) it cannot be held responsible for Kester’s misappropriation of 'the money provided it acted in good faith, even if negligent, and the complaint fails to allege that defendant did not act in good faith. Section 2 of the act provides that “A person who in good faith pays or transfers to a fiduciary any money or other property which the fiduciary as such is authorized to receive, is not responsible for the proper application thereof by the fiduciary ...” Section 1 defines “Good faith” as “A thing is done in good faith within the meaning of this act when it is in fact done honestly, whether it be done negligently or not.”

Defendant argues that it was not bound to inquire as to any breach of Kester’s fiduciary obligations when it purchased the certificate of deposit from him, and did not become responsible for the proper application of the proceeds of the check. The complaint charges that making the check payable to “Franklin J. Kester” was a careless, negligent and wrongful act, but these words are not the equivalent of bad faith. Bad faith imports a dishonest purpose and implies wrongdoing through some motive of self-interest. Spiegel v. Beacon Participations, 297 Mass. 398, 416.

Plaintiff says that Kester was not only “a fiduciary,” as described in the statute, but was also a “person” with an individual status, and that when the check was made payable to him as a person it was not the payment or transfer of money to “a fiduciary” as contemplated by the statute. This is a strained reading of the statute. Having in mind its true intent it means that when money is honestly paid to a person who is a trustee which as a fiduciary he is authorized to receive, the payer is not responsible for its application.

As noted in 4 Bogert on Trusts and Trustees, sec. 901, at common law under some circumstances a duty was imposed on one buying trust property from a trustee to see that the trustee applied the purchase price paid to trust purposes, but this rule has been abolished by statute in England and in most of our States, and under these statutes the purchaser from a trustee who has the power to sell need make no inquiry as to the use to which the trustee intends to put the money and may safely assume that it will be applied appropriately as trust property.

The cases of All v. McComas and All v. Kloppel, 162 Md. 690, are in point. There certain property was devised by will to Wattenscheidt as executor and trustee; defendant McGomas purchased a drug business from the trust estate, making one of the checks given in payment payable to the order of “Wattenscheidt, attorney”; another payment was by a check to “Wattenscheidt” individually; he appropriated the money represented by these checks to his own use, and the successor-trustee of the estate sued the defendant McComas for the amount of these two checks claiming that he well knew that the drug business did not belong to Wattenscheidt individually but to him as executor and trustee of the estate. It was there argued, as here, that the legal effect of the issuance of the checks in the forms mentioned made the defendant a party to the breach of trust by Wattenscheidt as it made it easy for him to misappropriate the funds.

At the same time defendant Eloppel purchased certain ground rents from Wattenscheidt as trustee and paid for these with a check to the order of “C. B. Wattenscheidt, Attorney”; the proceeds of this sale also were misappropriated hy the trustee. The trial court sustained demurrers to the complaints, which on appeal was affirmed, the court (695) saying: “If the appellees in these cases had paid the purchase money to Wattenscheidt in cash instead of by checks, it is not contended that any responsibility would have attached to the purchasers on account of the diversion of funds. . . . The checks were accepted and were good, so that the effect would have been the same if the purchasers had paid in cash instead of by check. . . . payment in cash or its equivalent is all that is required, unless there be some more specific charge of active participation in the transactions by the appellees.” In answer to the argument of the plaintiff that because of the failure of defendants to make the checks payable to the executor and trustee they “took the first step that ended in the spoliation of the trust,” the court very aptly said: “If the payee intended to appropriate the proceeds, as he surely did intend, payment to him in any form would have been the first step. ’ ’ The opinion cites section 2 of the Uniform Fiduciary Obligations Act and concludes that as no charge of bad faith on the part of the respective defendants was made, the demurrers were properly sustained. Other cases to the same effect are Colby v. Riggs Nat. Bank, 92 F. (2d) 183, Davis v. Pennsylvania Co., 337 Pa. 456, and New Amsterdam Casualty Co. v. National Newark & Essex Banking Co., 117 N. J. Eq. 264, aff’d 119 N. J. Eq. 540.

Cases cited by plaintiff were decided prior to the enactment of our Fiduciary Obligations Act and none of the facts appearing in any of these are like those now before us. For the most part the decisions were predicated upon actual knowledge of the misappropriation of funds by the fiduciary.

Pertinent to the underlying equities involved are certain expressions in the opinion in New York Title & Mortgage Co. v. First Nat. Bank, 51 F. (2d) 485, where it was held that the remedy of subrogation is an equitable right which cannot be invoked in all cases without regard to circumstances but only in cases in which justice demands its application, and quoted from American Surety Co. of New York v. Citizens’ Nat. Bank of Roswell, N. M., 294 Fed. 609, 616: “The right of subrogation is an equitable right, and where equities are equal the right does not exist and there can be no relief.” In the case before us plaintiff was obligated under its surety bond to make good the defalcations of Kester. It did no more than it was obligated to do. Under such circumstances it could hardly be said that its equities were greater than those of the defendant, an innocent purchaser.

Plaintiff says that if defendant’s check had been made payable to Kester “as trustee” plaintiff would have been protected, but this is not true. Under section 9 of the Fiduciary Obligations Act the check to Kester as trustee could have been indorsed by him as trustee and deposited in his personal account and the depositary bank would not be bound to inquire whether Kester was breaching his fiduciary obligation in so doing. This section of the statute authorizes the bank under such circumstances to pay the amount of the deposit or any part thereof upon the personal check of the' fiduciary without being liable unless the bank' has actual knowledge that the fiduciary in so doing is committing a breach of his obligation. This would also be true under the provisions of sections 4 and 9 if the check had been made to Kester’s principal, the Central & Northwest Corporation, for he could have indorsed the check in the name of his principal and deposited it in his personal account.

There is no merit in the suggestion by plaintiff that defendant is liable because it knew that Kester was holding the certificate of deposit as trustee. The whole purpose of the Fiduciary Obligations Act is to cover situations which arise when one person honestly deals with another knowing him to be a trustee.

In Scott on Trusts, vol 2., sec. 297.6, it is said that one is not chargeable with notice of a breach of trust unless he has actual knowledge of the breach or knowledge of such fact as amounts to bad faith in purchasing the property from the trustee. The author says “It would seem that the mere fact that the transferee is negligent in failing to learn of the breach of trust is not enough to charge him with notice unless he acts in bad faith.” The complaint does not allege any knowledge or facts showing bad faith by the defendant in purchasing the certificate of deposit.

Counsel for the defendant properly says that if plaintiff’s theory were followed to its ultimate conclusion no person could deal with a trustee except at his own peril. The enactment of the Fiduciary Obligations Act was to maintain the value of a trust and to protect those who innocently and in good faith deal with trustees. As was said in Colby v. Riggs Nat. Bank, 92 F. (2d) 183,198, the act “relaxes some of the harsher rules which require of a bank and of individuals the highest degree of vigilance in the detection of a fiduciary’s wrongdoing.”

The trial court properly struck the complaint and the judgment is affirmed.

Affirmed.

Matchett, P. J., and O’Connor, J., concur.


text:
    Joseph Buglio, Appellee, v. Walter J. Cummings and Daniel C. Green, Receivers, et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 42,244.

      Opinion filed December 21, 1942.
    Frank L. Kriete, William C. McHenry and Arthur J. Donovan, all of Chicago, for appellants; William J. Flaherty, of Chicago, of counsel.
    Joseph Barbera, of Chicago, for appellee; Harry G. Fins, of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit for damages alleged to have been sustained by him in a collision between the automobile which he was driving and a street car operated by the defendants. The case has been tried twice. The first time the jury brought in a verdict for plaintiff of $5,000. The motion for a new trial was allowed. On this second trial the verdict was for $10,000, and defendants appeal from the judgment.

The complaint alleged general negligence in the operation of the street car and also that defendants’ servant wilfully and wantonly operated the street car causing it to collide against the auto which plaintiff was driving. The court refused defendants ’ motion to strike the wilful and wanton conduct charges and they were submitted to the jury. No special interrogatory was submitted and there was a general verdict in favor of the plaintiff.

Defendant first argues there was no evidence tending to support the charges of wilful and wanton conduct alleged in the complaint. The accident happened about 9 o ’clock in the evening of June 29,1938; plaintiff was driving his Ford auto south in the southbound street car tracks on Ashland avenue in Chicago; 46th street, running east and west, intersects Ashland, and plaintiff testified that when he reached 46th street he stopped at the safety isle just north of the north crosswalk across Ashland; it was dusk — just coming dark; plaintiff had his “little cowl lights on”; after bringing his auto to a stop he looked east and west, saw no traffic and started to turn left in 46th street; that just as he got past the crosswalk and started to turn left another auto came from the west, eastbound, and stopped in the north bound street car track to let north bound traffic go through; that plaintiff stopped his auto on an angle, with its left front wheel on the west rail of the north bound track; as plaintiff was turning to the left he saw a street car a little more than 200 feet to the south coming north on Ashland; his auto remained standing about 10 or 15 seconds when the auto in front of him started eastward; he was about to start to the left into 46th street when he saw the street car about 10 feet from his auto coming a little better than 10 miles an hour; he heard no gong; his auto was still standing when it was struck by the street car; after he came to a stop and just before he saw the approaching street car 10 feet away he could not say where the street car was because he was' watching the auto ahead of him.

The motorman testified that as he was going north on Ashland and arrived at 46th street he stopped on the south side to pick up some passengers; that he got the bell from the conductor and started north, passing over 46th street; he testified there was no automobile or any kind of vehicle coming from the west and going east on 46th street at that time; that he passed over 46th street going about 6 or 7 miles an hour and was about 12 or 15 feet north of the 46th street building line when he noticed plaintiff’s auto ahead of him going south and starting to angle into the north bound track; he noticed the driver was “kind of slumped over the wheel”; that he rang his gong twice, applied his brakes immediately and the street car had about.stopped when plaintiff’s auto struck it; that when he first saw plaintiff angle over towards the north hound track he, was about 30 or 35 feet north of the street car and his auto was going 25 or 30 miles an hour. The left front of plaintiff’s auto struck the left front of the street car and skidded alongside of the car. The motorman got off the street car, opened the door of plaintiff’s auto and with help took him out and took him to a doctor’s office which was nearby.

The question of wilful and wanton conduct in accident cases has been the subject of much litigation. One of the leading cases is Walldren Express & Van Co. v. Krug, 291 Ill. 472, 477-479, where it was held that to support a charge of wantonness in such cases there must be evidence of reckless disregard of a known duty; that the charge implies an act heedlessly done in disregard of another’s rights and not a mere negligent omission of duty. See also Kalinski v. Williamson County Coal Co., 263 Ill. 257, 265; Chicago R. I. & P. Ry. Co. v. Hamler, 215 Ill. 525, 540; Cook v. Big Muddy Carterville Min. Co., 249 Ill. 41, 51; Little v. Blue Goose Motor Coach Co., 346 Ill. 266, 272, and many other cases.

The evidence in the present case fails entirely to show that the conduct of the motorman at and before the collision with plaintiff’s auto was wilful or wanton. The evidence shows to the contrary — that he used all means available to prevent the collision. The motorman testified that plaintiff’s auto appeared on the north bound track suddenly and unexpectedly and there was nothing which he might have done but failed to do to prevent the collision.

Where wilful and wanton conduct are charged and a general verdict is returned it will be presumed to be based upon the charge of which malice is the gist. Greene v. Noonan, 372 Ill. 286, 290, followed in Rowley v. Rust, 304 Ill. App. 364. Under such circumstances the judgment must be reversed.

Although defendant’s brief does not argue whether the charges of general negligence were supported by the preponderance of the evidence, we are impressed by the fact that plaintiff’s testimony as to how the accident happened is contrary to that of some five or six other witnesses, who testified that the collision occurred after the street car had passed the north side of 46th street. No witness except plaintiff testified that there was another auto going eastward into 46th street. Four of these testified that plaintiff’s auto was going south in the south bound street car track at a speed of 20 to 30 miles an hour and that it suddenly swerved toward the north bound track, striking the left side of the street car; that the motorman sounded his gong and set the. brakes and brought the car to a stop suddenly not more than a foot or so past the place where the vehicles collided.

As there must be another trial it is unnecessary to comment upon the amount of the jury’s verdict on this second trial, which was twice the amount that was returned on the first trial.

Defendants complain of some of the instructions given at the request of plaintiff. Plaintiff’s given instruction No. 1 is open to criticism in that it tells the jury that it may find any fact proved which may reasonably be inferred from the evidence although there may be no evidence as to such fact. This instruction was especially erroneous as touching the highly technical testimony of the doctors. Much of this testimony was speculative and the jury should not be told they might speculate as to the injuries claimed. Instruction No. 3 undertakes to define proximate cause, and improperly assumes there was negligence in the case. Plaintiff’s given instruction No. 4 is subject to the criticism that it assumes plaintiff was lawfully attempting to cross Ashland avenue when the street car was approaching. Plaintiff’s given instruction No. 10 undertook to tell the jury what constituted wilful and wanton conduct on the part of defendants. As there was no evidence to sustain the charge of wilful and wanton conduct this instruction should not have been given. The court should have in the first instance sustained defendants’ motion that the jury be instructed to disregard the wilful and wanton conduct charges.

Plaintiff stresses the fact that two verdicts in this case have been returned for the plaintiff. In Blackhurst v. James, 304 Ill. 586, 593, the Supreme Court said if there is no evidence sustaining the verdict the reviewing court will set it aside “no matter how many juries have found the same way. ’ ’

Plaintiff’s argument that the judgment should be affirmed because of the insufficiency of the abstract and no appeal was taken from the order denying the motion for a new trial, is without merit. The record shows that the notice of appeal was in proper form, and was filed with proof of service in apt time. The point made by plaintiff is much like that considered in People v. Grabs, 373 Ill. 423, where it was held if there is any insufficiency in the abstract the opposite party shall furnish an additional abstract, making any necessary or further additions.

For the reasons indicated the judgment is reversed and the cause remanded.

Reversed and remanded.

Matchett, P. J., and O’Connor, J., concur.


author: Mr. Justice O’Connor

text:
    Dulcemia Warren and Eugenia Wilson, Appellees, v. Raymond J. Yost et al. Raymond J. Yost, Appellant.
    Gen. No. 42,222.
    Opinion filed December 21, 1942.
    Alfred F. Beck, of Chicago, for appellant.
    No appearance for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

November 14, 1941, plaintiffs filed their verified complaint in chancery praying that defendants be' restrained from taking any further steps in a forcible detainer action in the municipal court, and for an accounting. Three days afterward, on motion of counsel for plaintiffs, an order was entered denying their motion for a temporary restraining order. December 22, following, defendant Raymond J. Yost, filed his verified answer to the complaint. January 5, 1942, counsel for defendant served notice on counsel for plaintiffs that on January 7 he would appear before Judge Nelson and ask that an order be entered dismissing the complaint for want of equity “in accordance with the answer of the defendant Raymond J. Yost,” theretofore filed. January 7, an order was entered on motion of plaintiffs’ attorney, defendant’s motion was continued until January 9, and on January 9. an order was entered which recites that on motion of attorney for defendant, Raymond J. Yost, who had not been served but who had entered his appearance and filed his answer ‘ and the court having read the verified pleadings filed herein and having heard the evidence and the arguments of counsel . . . .” Then follow a number of findings to the effect that there was no merit to plaintiffs’ case and it was ordered, adjudged and decreed that the complaint be dismissed for want of equity at plaintiffs’ costs. Three days afterward, January 12, upon notice of motion of counsel for plaintiffs, an order was entered which recites that upon motion of attorney for plaintiffs “to vacate the order of January 9th, dismissing the above entitled cause for want of equity and fob leave to plaintiffs to take a non-suit” it was ordered, adjudged and decreed that the order of January 9, dismissing the suit for want of equity be vacated and set aside and “That plaintiffs have leave to take non-suit and that the above entitled cause is- hereby dismissed at plaintiffs’ cost and without prejudice.” It is from this order that defendant, Raymond J. Yost, appeals.

Plaintiffs have filed no brief in this court. Counsel for defendant Yost says that the order of January 12, which purported to vacate the order of January 9 and permit plaintiffs to take a non-suit, “was granted over objection .of defendant,” but no such objection appears in the record but we think it not important here. The court was not warranted on January 12 in vacating its order or decree of January 9 which showed that the court heard the case on its merits and ordered the suit dismissed for want of equity without any showing as to why this should be done. Section 50, ch. 110, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 104.050]. And the court was also without warrant in allowing plaintiffs ’ motion for a non-suit since there was no attempt to comply with the provisions of section 52 of the Civil Practice Act, § 52, ch. 110, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 104.052]; Chicago Title & Trust Co. v. County of Cook, 279 Ill. App. 462; Gunderson v. First Nat. Bank of Chicago, 296 Ill. App. 111.

The order of January 12 appealed from is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded with directions.

Matchett, P. J., and McSurely, J., concur.


author: Mu.. Presiding Justice Huffman

text:
    L. B. Rogers, Individually and as Trustee Under the Last Will and Testament of Jessie Powers Holmes, Deceased, Appellee, v. Jessie Powers Belt et al., Appellants.
    Gen. No. 9,809.

      Opinion filed December 22, 1942.
    Eva L. Minor, of Kankakee, for appellants.
    John A. Mayhew, of Kankakee, for appellee.
   Mu.. Presiding Justice Huffman

delivered the opinion of the court.

Appellee was executor of the estate of Jessie Holmes, by virtue of her will. By the sixth clause of the will, it was provided that said executor convert the real estate into cash, and the net proceeds therefrom be held in trust by him, for the testatrix’s niece, Caroline Singer, and nephew, Robert Belt, until such time as they should become 18 years of age.

It appears the estate in the county court was closed, on December 26,1941. At that time, appellee as executor of said estate, paid to himself as trustee, the sum of $11,317.30. On December 29, 1941, appellee trustee filed his petition in the circuit court, asking for direction as to the investment of said fund, and for the allowance of trustee’s fee and attorney’s fee. No notice was given with respect to this petition, and no evidence was heard with respect to the allowance of the above fees. On the petition as filed, the court, on said 29th day of December, designated certain banks as depositories in which the trustee was directed to deposit the fund, and granted to appellee a trustee’s fee of $250, and an attorney’s fee for a like amount.

Appellants, the two minors for whom the trust was created, upon becoming apprised of the action of the court in granting trustee and attorney fees, filed their motion to vacate such order, insisting that they were entitled to notice so that they might have opportunity to oppose the granting of such allowances, and urging further, that no guardian ad litem was appointed to represent them prior to such order. This motion was denied, and the two cestuis bring this appeal.

Prior to the Act of 1891 (Laws of 1891, p. 216), ch. 148, Ill. Stat., sec. 31, which provides for compensation of testamentary trustees, such persons were not entitled to compensation for their services in the absence of a provision in the will authorizing same. Arnold v. Alden, 173 Ill. 229. The above section of the statute provides, that the court having jurisdiction of the trust estate, may allow a reasonable fee to such trustee, under the conditions therein set out. Many States have similar provisions and it is generally considered that the amount of such compensation rests in the discretion of the court having jurisdiction. Various factors enter into the matter which are considered helpful in enabling the court to reach a conclusion as to the proper amount of compensation which should be granted a trustee in a given case. In a general way, it might be said that the amount of capital and income received and disbursed by the trustee; the usual and customary fees for such services in that particular jurisdiction; the success or failure of the trustee in the administration of the trust; any unusual skill or experience which he had to bring to bear; his fidelity or disloyalty; and the character of the work done in the course of administration, together with the conduct of the estate, are all elements proper for a court to take into consideration in awarding compensation to a trustee. This naturally presupposes that the award is sought for services already performed, and not in anticipation of services.

In the absence of a controlling statute, compensation may be awarded by the court during the trust administration, but since such fees are to be determined by the nature and character of the services performed, the conduct of the trustee, and many other elements that enter into such transactions, it might be considered as a universal rule that such compensation is awarded for work that has been done to that date. If the same be based upon an intermediate report, it will be determined upon the work done since the date of the last prior payment, and if upon final accounting, it will be allowed for the work done either since the beginning of the trust or since the date of the last prior payment, as the case may be. The intent of the law is that the trustee, in some manner, make a showing of the performance of his acts with sufficient detailed proof in connection therewith, so that the court can determine what is a fair and' proper amount of compensation to be granted. This principle is observed in the case of Nonnast v. Northern Trust Co., 374 Ill. 248, 270.

Here the estate in the county court had been closed. Appellee and his attorney had received their compensation allowed in that court. The petition and order granting trustee and attorney fees was on the third day following the final settlement of the estate in the county court.

It is our opinion, the appellee should make adequate proof of the nature and value of the services rendered as trustee, and that the cestuis should have the right to be heard in connection therewith.

The order and decree of the circuit court is reversed and cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Huffman

text:
    Mary Skillman, Appellee, v. Earl McDowell and Jane McDowell, Trading as Talk O’ The Town, Appellants.
    Gen. No. 9,816.

      Opinion filed December 22, 1942.
    George Z. Barnes, of Peoria, and Ekern, Meyers & Matthias, of Chicago, for appellants; George Z. Barnes, of Peoria, Donald L. Thompson, William G. Chorn and Walter F. Dodd, all of Chicago, of counsel.
    Cassidy, Knoblock & Sloan, of Peoria, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This is an action by appellee under the Dram Shop Act, to recover damages from appellants for personal injuries sustained while a customer in their place of business. The appeal is prosecuted- from judgment rendered upon the verdict.

On the evening in question, appellee and her husband in company with friends, entered the place of business of appellants. They were seated at the bar preparatory to partaking of a drink, when their attention was attracted by the noise and confusion produced by a man and woman scuffing over a gun. It appears that Mrs. Ruth Freed was possessed of the gun, a revolver, and was engaged in a scuffle with her husband. Suddenly she began to shoot, and fired the gun several times. One of the shots struck appellee just above the elbow of her right arm, passing through the arm. Evidence shows that from this injury, she has practically lost the use of her hand and forearm.

Prior to the trial of the case, and approximately 11 months after the commencement thereof, appellants filed a motion, supported by affidavit of appellant, Earl McDowell, to exclude attorneys for appellee from participating in the trial. The motion and affidavit recite that on the date appellee received her injury, appellants carried a policy of insurance with the Continental Casualty Company, to insure them against liability for certain types of loss or damage; that immediately after the shooting of appellee, they notified the agents of such company; that subsequent to this notice, Attorney Louis F. Knoblock, an associate of appellee’s firm of attorneys, came to appellants ’ place of business as a representative of the said casualty company, where he obtained certain statements from appellants and their employees with respect to the affair. Appellants say' that they would not have furnished the information to the attorney, except for the fact that they wished to co-operate with Mm as the attorney for the Continental Casualty Company, and further that by the terms of their policy with that company, they were obliged to so co-operate. Appellants by their motion, ask that the trial court restrain appellee’s firm from appearing in any manner in the further prosecution of the case.

Attorney Knoblock filed his affidavit in response to appellants’ motion. By his affidavit, he states that as a representative of the Continental Casualty Company, he did go to the place of business of appellants for the purpose of determining what had occurred, and whether there was any liability existing under the policy of insurance issued to them by said company; that upon learning from appellants and their employees, what had happened, he found there was no liability under the policy; that this policy was what is known as an owners’, landlords’ and tenants’ policy, which insured appellants against liability for damages as a result of defective, dangerous or hazardous condition of the premises, and that said policy was in no way connected with liability under the Dram Shop Act. He states that all he requested was that they tell him what happened so that he might determine the question he was there to determine. He denies that he obtained any confidential information from appellants, or their employees, and states that he only learned such facts as were conversant to all who were present at the resort on the evening in question. He further states that before instituting the suit for appellee, he called appellant, Earl McDowell, by telephone, and stated to him that appellee had requested the bringing of the suit, and appellant stated that it might as well be him as some other lawyer, whereupon he informed appellant he would proceed to represent appellee.

The court denied appellants’ motion to strike the appearance of appellee’s counsel, or to restrain them from acting as attorneys in the case.

The motion and affidavit of appellants claim that the information obtained by Attorney Knoblock was of a confidential nature, and obtained by reason of his appearing as attorney for their insurance carrier. It does not appear the attorney secured any facts other than what were subject to the observation of the patrons of appellants’ place of business at the time of the shooting. We find nothing of a secret or confidential nature set out. The resort was crowded with people at the time of the shooting. The participants to the shooting were customers of appellants. Since they were acting wholly upon their own volition, it is not to be presumed the appellants had any confidential information in regard to the affair.

Public policy demands that an attorney shall not act in a manner or capacity that would be incompatible with his duty as attorney toward his client, and under this rule, he is disqualified from representing interests which are adverse or hostile, and in conflict with those of his client. However, where it appears that nothing of a confidential nature was obtained by the attorney, and that the relationship of attorney and client did not arise, and that no injury resulted from the conduct complained of, the court will not prevent the attorney from continuing in the case. Whether an attorney has violated his professional duties, and should be prohibited from acting in a particular case, depends upon the facts in such case. The rule merely forbids an attorney’s appearance against a former client where the attorney can use, to the detriment of said client, the information and confidences acquired during the existence of their former relation. Here, neither the motion nor affidavit sets out any alleged confidential information obtained by the attorney from appellants. The only thing that appears to have been obtained was such information as was testified to by those present in appellants’ resort at the time in question, and as far as we can determine from the record, this was the only information Attorney Knóblock received from appellants. The parties understood the sole purpose of this investigation was to determine if the nature and character of the injury to appellee was such as was covered by the policy of insurance carried with the Continental Casualty Company. When the attorney learned the nature of the aifair that had occurred and the manner in which appellee had been injured, he reported there was no liability on the part of the Continental Casualty Company. Under the circumstances existing in this case, the trial court did not err in refusing to restrain appellee’s attorneys from continuing with the proceedings.

Appellants further complain of the refusal of the trial court to permit them to show that appellee had received $550, from Mrs. Freed in consideration of a covenant not tó sue. Under the circumstances, we are not of the opinion the court erred in this respect. The actions were of distinct and separate characters. Mrs. Freed is not charged as a joint tortfeasor with appellants. Their liabilities do not arise from the same source. Appellants’ liability is purely statutory and governed by the Dram Shop Act. Mrs. Freed was not a party to this suit.

Appellants’ third point urged for reversal is, that the verdict is against the manifest weight of the evidence, in that it does not show the intoxication of Mrs. Freed, or that appellants’ sale of liquor to her was a contributing factor to appellee’s injury. These were proper questions for the determination of the jury. Without a review of the evidence in this regard, we find many witnesses who testified to the conduct of Mrs. Freed, and who express an opinion that she was intoxicated. One cannot review the testimony of her conduct and her language without a conviction that she was intoxicated. The evidence discloses that she was in appellants’ place of business during the evening, in company with others, and that she consumed whiskey. The shooting did not occur until about 2:30 o’clock in the morning. While the court will not indulge in presumptions, yet neither is it blind to the ordinary experiences of life. One does not come armed to a resort of this character, and after spending the night, attempt the shooting of a husband, without some artificial stimulus to the normal processes.

The judgment is affirmed.

Judgment affirmed.


text:
    Harry H. Johnson et al., Appellees, v. Carey R. Johnson et al., Appellants.
    Gen. No. 9,831.
    Opinion filed December 22, 1942.
    Trimble & Trimble, of Princeton, for appellants; Perry D. Trimble, of Princeton, of counsel.
    J. L. Spaulding and L. D. Spaulding, Jr., both of Princeton, for appellees; J. T. Skinner, of Princeton, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This suit has to do with the construction of that portion of a testator’s will disposing of the residue of his estate. For all practical purposes, it may be said that the testator, gave his wife a life estate in his lands, and provided that upon termination of such estate, the real estate should be sold, and from the proceeds thereof, after payment of certain specific • legacies, the residue was bequeathed by the following paragraph:

“h. All the rest, residue and remainder of said trust estate, including any bequest herein made which may fail or lapse for any reason, my said trustees shall pay out and distribute to and among my nephews and nieces, namely:
“Carey R. Johnson, a son of my deceased brother, John Calvin Johnson.
“James Cook Johnson and Hiram Lyle Johnson, the sons of my deceased brother, Hiram Johnson.
“Owen Walker, the son of my deceased sister, Alice Walker.
“Watts J. Harris, Grace M. Harris, Bernadine L. Chase, children of my deceased sister, Nora Harris.
“Minerva Ann Place, daughter of my sister, Margaret Place.
“Frank Mundy, Claude Mundy, Darlene Dix and Virgil Mundy, children of my sister, Mary Mundy.
“Harry H. Johnson, Clay Johnson, Gray M. Johnson, Frank B. Johnson, Homer T. Johnson, Elvira M. Johnson, Ruth C. Johnson, Benjamin H. Johnson and Alice R. Johnson, children of my brother, William H. Johnson,
share and share alike. Should any of my said nephews or nieces die before the time when this bequest is ready for distribution, leaving child or children them surviving, then the bequest herein given and intended for such deceased one or ones shall he paid and distributed to the child or children of such deceased one or ones, per stirpes, share and share alike.”

It is the construction to be placed upon this paragraph about which the parties are in dispute. Twenty-one nephews and nieces are named in the above bequest. One nephew (Virgil Mundy) died without issue, prior to the time for distribution. This reduced the nephews and nieces to twenty in number. Another nephew (Harry H. Johnson) died, leaving two daughters, Dorothy Pearl Sarver, and Mary Bowen Bartlett.

The controversy between the parties with respect to the above portion of the will is whether distribution should be made among the nephews and nieces on a per capita basis, or upon a stirpital basis. It will be noted that the nephews and nieces named in the foregoing provision of the will, were children of seven deceased brothers and sisters of the testator.

Appellants urge the fund should be divided upon a stirpital basis, as follows:

“1/7th thereof to Carey R. Johnson,
“l/7th thereof to James Cook Johnson and Helen Eileen Hemperly (formerly Helen Eileen Johnson) assignee of James Cook Johnson, divided equally between them,
“l/7th thereof to Owen Walker,
“l/7th thereof to Watts J. Harris, Grace M. Harris, and Bernadine H. Lacy (formerly Bernadine L. Chase), divided equally between them,
“l/7th thereof to Minerva Ann Place,
“l/7th thereof to Frank Mundy, Claude Mundy and Darlene Dix, divided equally between them,
“l/7th thereof to Clay Johnson, Gray M. Johnson, Frank B. Johnson, Homer T. Johnson, Elvira M. Johnson, Ruth C. Dremann (formerly Ruth C. Johnson), Benjamin H. Johnson, Alice R. Foushee (formerly Alice R. Johnson), and Dorothy Pearl Sarver and Mary Bowen Bartlett (children of Harry H. Johnson, deceased) divided equally between them, except that said Dorothy Pearl Sarver and Mary Bowen Bartlett shall, between them, take the share which their deceased parent would have taken had he survived.”

Appellees insist the distribution should be upon a per capita basis, as follows:

“To Carey R. Johnson, son of testator’s brother John Calvin Johnson, an equal l/20th thereof,
“To Helen Eileen Hemperly (formerly Helen Eileen Johnson) assignee of james Cook Johnson, and Hiram Lyle Johnson, sons of testator’s brother, Hiram Johnson, each, and equal l/20th thereof,
“To Owen Walker, son of testator’s sister Alice Walker, an equal l/20th thereof,
“To Watts T. Harris, Grace M. Harris, Bernadine H. Lacy (formerly Bernadine L. Chase) children of testator’s sister Nora Harris, each, an equal l/20th thereof,
“To Minerva Ann Place, daughter of testator’s sister Margaret Place, an equal l/20th thereof,
‘ ‘ To Prank Mundy (otherwise known as Frank Mun-day), Claude Mundy (otherwise known as Claude Mun-day), Darlene Dix (otherwise known as Darlene Dicks) children of testator’s sister, Mary Mundy (otherwise known as Mary U. Munday), each, an equal l/20th thereof,
“To Clay Johnson, Gray M. Johnson, Frank B. Johnson, Homer T. Johnson, Elvira M. Johnson, Buth C. Dremann (formerly Buth C. Johnson), Benjamin H. Johnson and Alice B. Foushee (formerly Alice B. Johnson) children of testator’s brother William H. Johnson, each an equal l/20th thereof,
“To Dorothy Pearl Sarver and Mary Bowen Bartlett, children of Harry H. Johnson, deceased, each an equal 1 /40th thereof. ’ ’

The court decreed distribution as urged by appellees, and appellants have appealed from that portion of the decree fixing the manner of distribution.

Appellants urge the rule that where an ambiguity exists, it will be presumed the testator intended his property should go in accordance with the laws of descent, and that such presumption should be applied in construing this will. Citing in this respect, such cases as Dahmer v. Wensler, 350 Ill. 23, 28; and Desmarteau v. Fortin, 326 Ill. 608, 614. They further urge that the law favors a stirpital distribution, and that this rule will be applied when such an intention can be glimpsed from the context of the instrument. Citing such cases as Welch v. Wheeloch, 242 Ill. 380, 388; Dollander v. Dhaemers, 297 Ill. 274, 278; Henry v. Henry, 378 Ill. 581; and Condee v. Trout, 379 Ill. 89.

Appellees urge that when the beneficiaries designated in a will stand in equal degree of relationship to the testator, and the bequest is for the benefit of all of them, the court will order a per capita distribution. Citing in this respect, Dollander v. Dhaemers, supra, at p. 278. Dahmer v. Wensler, supra, and Condee v. Trout, supra, at pp. 92, 93; Beal v. Higgins, 303 Ill. 370; Northern Trust Co. v. Wheeler, 345 Ill. 182. This is the general rule. The cases of Richards v. Miller, 62 Ill. 417, 419, 425, and Beall v. Beall, 331 Ill. 28, 34, also support the position of appellees.

The authorities cited by the several parties in their briefs, are too numerous to attempt any discussion of them in this opinion. Those above set out are illustrative of the points involved. Nothing here need be added to what is there said.

We are of the opinion the trial court properly construed the provision of the testator’s will. The decree fixing the order of distribution is affirmed.

Decree affirmed,.


author: Mr. Justice Dove

text:
    In re Estate of George H. Meyer, Deceased. Esther Kell, Appellant, v. Irving C. Deschauer, Executor of Last Will and Testament of George H. Meyer, Deceased, Appellee.
    Gen. No. 9,813.

      Opinion filed December 22, 1942.
    Hall & Hulse, of Waukegan, for appellant.
    Philip A. Populorum, of Waukegan, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

The contest in this case involves the ownership of a promissory note and a deed of trust securing the same. Appellant claims ownership thereof by virtue of an alleged gift to her by George H. Meyer, the decedent. The probate court of Lake county, on appellant’s petition, appellee’s answer and a hearing, entered an order in favor of appellant. The circuit court, on appeal and a hearing on a transcript of the evidence taken in the probate court, entered a decree finding the securities did not become the property of appellant by either a gift causa mortis or by a gift inter vivos, but belong to the estate of the decedent. To reverse that decree this appeal is prosecuted.

The securities in controversy consist of a promissory note for $2,500, dated January 6, 1929, due in three years and a deed of trust securing the payment thereof, all executed by Ferguson Harkness and wife, the notes being payable to the order of themselves and indorsed by them. The principal sum has been reduced, by payment, to $2,000 and the maturity thereof extended to November 4, 1944.

The decedent and appellant each lived in the village of Lake Zurich. Appellant taught school six or seven miles from the village. The decedent was 74 years of age. He was failing in health and lived alone, except that appellant attended to his house work mornings and evenings. He had been operated upon and when he came home appellant had dressed the sore.

James Davidson, a neighbor, 73 years old, who operated a filling and milk station, testified that on a Saturday in November 1940, he took the decedent to a doctor’s office located in a hospital at Palatine; that on the way to the doctor’s office the decedent said he had some papers he wanted to leave at the Lake Zurich bank for Esther Kell; that the bank was closed, and the decedent said he would stop when he came back; that they had to wait some time-at the hospital for the doctor, and decedent said he did not think they would get back in time to get into the bank; that when the doctor came, he examined the decedent, and said he would like to keep him there for a couple of days; that decedent had a package of papers wrapped in a paper bag; that he gave the package to the witness, saying: “You take the package and give it to Miss Kell: I got to stay here two or three days,”

The decedent never left the hospital, but died the following Thursday, November 28, 1940. Mr. Davidson further testified he put the package in the back seat of his car, and was busy two or three days before he thought about it; that he called twice at appellant’s house across the street from his filling station at about five or six o ’clock in the evening, but did not find her ; that he saw her once at a distance on the street, but did not get to talk to her about the package until after the decedent’s death; that when he could not find appellant he thought he had better take the package to appellee (Irving C. Deschauer), because he thought appellee was looking after the papers for Mr. Meyer ; that he went to Mr. Deschauer’s office two or three times, but did not find him, and finally left the package with A. R. Schnaebele, a real estate man who has office space in Mr. Deschauer’s office. Mr. Davidson did not know what the package contained until he was afterward informed of the contents by Mr. Deschauer. It was stipulated that the package contained an abstract of title, the note above described, with coupon notes, the trust deed securing the same, an opinion of title and an insurance policy. Pinned to the coupon notes was a memorandum reading: “Lake Zurich, Ill., November 16, 1940. It is my desire that these notes be turned over to Esther Kell after my death. George H. Meyer.” The memorandum, with the exception of the signature, is in Miss Kell’s handwriting. The real estate had been purchased by Mr. Davidson, subject to the incumbrance.

Mr, Davidson further testified that a few days before going to the hospital the decedent told him at the fining station in the presence of Arthur E. Briggs, that he was “going to make it right” with appellant. Mr. Briggs testified that he told the decedent he had nobody to help him except appellant, and that he ought to remember her, to which the decedent replied that he had “remembered” her, and was going to “remember her more.”

Irving C. Deschauer, appellee herein, testified that when he found the package on his desk, he took it over to Mr. Davidson’s office and asked him: “Jim, what about this package ? What do you know about it?” that Mr. Davidson replied: “Well, I found it in the back of my car when I was cleaning up”; that after some further conversation about the contents, the witness asked Mr. Davidson: “You didn’t know it was left in the back of the car?” to which he replied: “No, I didn’t.”. Appellee further testified that Davidson, in this conversation, said nothing about Miss Kell, but did in a later conversation tell him that the decedent delivered the package to him to turn over to Miss Kell for safekeeping until he got back from the hospital.

Mr. Schnaebele testified that on the day after the decedent’s funeral, Mr. Davidson brought the package to Deschauer’s office and said: “There’s something I found in the back of my car when I was cleaning it yesterday, a package that George Meyer took with him when I took him to the hospital. Now, on the way he asked me to drive him to the bank, he said he wanted to leave it at the bank and put it in his deposit box; and when we got to the bank the bank was closed; and that Mr. Meyer said: ‘Well, I’ll take it along with me. I’m not going to stay at the hospital tonight. ’ ” That in this conversation Mr. Davidson further said: “He (meaning the decedent) went so sudden that he (Davidson) had forgotten all about the package until he (Davidson) cleaned his car”; and that Davidson also said: “Irving (meaning appellee) is looking after Meyer’s affairs, so I thought I better turn it over to him”; and that Mr. Davidson, in this conversation, did not mention anything about Miss Kell.

On Mr. Davidson’s previous cross-examination he had denied telling Mr. Deschauer that the decedent delivered the package to him to turn over to Miss Kell for safekeeping, and testified he did not remember telling Mr. Schnaebele: “Here is something I found in the back of my car yesterday when I was cleaning up,” nor remember talking to him at all, and said, “I never talked to that man yet.” He was not put on the stand in rebuttal of any of the other testimony of Mr. Deschauer or Mr. Schnaebele.

There is no testimony in the record that tends to show that the decedent knew he was seriously ill when he went to the doctor’s office at the hospital, or when he allegedly handed the package to Mr. Davidson. The testimony of the latter is that the decedent did not say he thought he was going to die, or express any concern about his health or physical condition; that he did not talk much, did not seem to be very sick, or say that he was, but told the witness, when he went to the hospital that he thought he would be back home the same night.

There are three requisites necessary to constitute a donatio causa mortis: 1. the gift must be with a view to the donor’s death; 2. it must have been made to take effect only in the event of the donor’s death by his existing disorder; 3. there must be an actual delivery of the subject of the donation. (Telford v. Patton, 144 Ill. 611; Williams v. Chamberlain, 165 Ill. 210.) The first and second of these requisites being lacking here, it is obvious that the alleged gift cannot qualify as a gift causa mortis. It remains to be seen whether it was a completed gift inter vivos.

T?o constitute a gift inter vivos there must be a delivery of the property and a parting with all present and future domination over it, and it is essential to the validity of the gift that it be absolute and irrevocable. It is not essential that the delivery be made $ directly to the donee but a valid delivery may be made to a third party for the donee. The delivery, however, must be with the intention of vesting the title absolutely and irrevocably in the donee and the donor must relinquish all present and future dominion and power over the subject matter of the gift. If the gift is not completed during the lifetime of the donor his death revokes the part which has been performed. c' There must be the intention of making a gift, but intention alone, that the donee shall have the property does not make a gift. The delivery of the subject of <=r*the gift into the possession of the donee or some third person for his benefit is essential, and the delivery must be with the intention of vesting the title and the immediate right of possession of the property in the donee or it will be insufficient (Hopkins v. Hughes, 340 Ill. 604, 610-611; Kelly v. Dyer, 359 Ill. 46; Northern Trust Co. v. Swarts, 309 Ill. 586; Rothwell v. Taylor, 303 Ill. 226.) If the delivery is absolute and unconditional, so that the gift takes effect at once, the assent of the donee may be implied. (Taylor v. Harmison, 179 Ill. 137, 141.)

Where delivery is made to a third person, the question whether the gift was thereby completed without actual delivery to the donee depends entirely upon whether the person to whom the property is delivered receives it as the donor’s agent or as trustee for the donee. And this is to be determined from the intention of the donor, the situation and relation of the parties, the kind and character of the property, and the things said and done in regard thereto as disclosed by the evidence. On a delivery to a third person as the agent of the donor, the gift is not complete, and the death of the donor before the delivery to the donee works a revocation of the gift, but by delivery to one as the agent of the donee an irrevocable gift is made, which is not affected by the death of the donor before the property comes into the hands of the donee. (Jennings v. Neville, 180 Ill. 270; Trubey v. Pease, 240 Ill. 513; Telford v. Patton, supra; 28 C. J. 640, sec. 32; 12 R. C. L. 935, sec. 12.)

Appellant contends that because of the relation of the parties, the instructions to Mr. Davidson, and the conversations of the decedent prior to the time he went to the hospital, and the absence of any showing to the contrary, the presumption arises that Mr. Davidson was a trustee for appellant, citing the following expression in Varley v. Sims, 100 Minn. 331, 111 N. W. 269, 8 L. R. A. (N. S.) 828 at page 830: “But, unless the contrary appears, it will be presumed that the person to whom delivery is made takes as the trustee of the donee.” There are several reasons why this contention cannot be sustained. In the first place, a gift is a voluntary, gratuitous transfer of property by one to another. It is essential to a gift that it should be without consideration. If a legal liability existed against the deceased it could not be discharged by a gift. (Martin v. Martin, 202 Ill. 382.) The statement of the decedent to Mr. Davidson and Mr. Briggs, before he went to the hospital, indicates that he intended to remunerate appellant for her services. While the statement does not imply that he felt there was a legal liability on his part to appellant, and may be considered as showing an intention to make a gift to her by some means and at some future time, it does not have any bearing upon the question of whether in the particular transaction Mr. Davidson was the decedent’s agent or was a trustee for appellant. The memorandum .pinned on the notes disclosing an intention that the gift should be effective after the death of the decedent is a circumstance strongly tending to rebut the presumption mentioned.

The only reason that could be assigned for the decedent handing the package to Mr. Davidson is that, because of his detention at the hospital, he knew he could not put it in the bank for two or three days. This does not indicate any change of his intention from that set out in the memorandum, — that is, that the gift was to be effective only at his death. The words attributed to him: “You take that package and give it to Miss Kell, I got to stay here two or three days,” are compatible with the same intention expressed in the memorandum. Under the circumstances, they do not, in our opinion, show an intent to presently vest her with the absolute, irrevocable title to the securities.

The law never presumes a gift, and the burden of proving all facts required to create a valid gift inter vivos is on the donee. The essential facts to be established are the delivery of the property by the donor to the donee, with the intent to pass the title. To sustain the gift, the proof must be clear and convincing. (People v. Polhemus, 367 Ill. 185, 191; Bolton v. Bolton, 306 Ill. 473, 486.) It is incumbent on the party asserting the trust to prove it by clear and satisfactory evidence. Whether a trust exists is to be determined from the proof, having in view all the surrounding facts and circumstances and the intention of the parties, and the proof must be clear and explicit. Thé words and acts relied upon as creating the trust must show clearly and unequivocally the intention of the donor to create a trust. (Trubey v. Pease, supra.)

Mr. Schnaebele testified that Mr. Davidson did not mention appellant in his conversation with him, and Mr. Deschauer testified likewise as to the first conversation he had with Mr. Davidson. Mr. Schnaebele also testified that Mr. Davidson told him that decedent told him he intended to put the package in his deposit box at the bank, and that he, Davidson, found it in his car when he was cleaning up the day before (the day of the funeral). Mr. Deschauer testified that Mr. Davidson told him in the first conversation that he found the package in his car when he was cleaning up and that he did not know it was in the car. None of this testimony is contradicted, except by Mr. Davidson’s testimony that he had never talked to Mr. Schnaebele. That he would walk into the office, leave the package and depart without saying anything to Mr. Schnaebele, with whom he testified he left the package, seems incredible. That his memory was faulty is demonstrated by the fact that on his direct examination he said he went to appellant’s house twice, and that once he had the package with him, and that he left it in the car the other time. On redirect examination he said he went to appellant’s house twice, and did not have the package with him on any occasion, but that it was in his car in his garage. On recross-examination he said he went to appellant’s house three times. Making trips for the purpose of delivering a package without taking the package along would be a strange circumstance. He admitted that on his first conversation with Mr. Deschauer, the latter asked him: “Well, how did you get ahold of it?”, and that he replied: “I was cleaning up the back of my car, and I found it there. I have been trying to turn it over to you, and then I left it with the man in the office. That is how I got control of the package.”

Under all the facts and circumstances in the record we are unable to say that appellant has established, by that clear and satisfactory proof essential to a gift inter vivos, two of the elements essential to such a gift; namely, that the decedent intended to presently vest the title to the securities in her as an absolute and irrevocable gift, and that Mr. Davidson was a trustee for her in that behalf.

While it may be a matter of regret that the intention of the decedent cannot be carried out still, in our opinion, the evidence fails to show a gift causa mortis or a gift inter vivos. The decree of the circuit court is affirmed.

Decree affirmed.


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    John Reell, for use of Charles Haskin, Appellant, v. Central Illinois Electric and Gas Company, Appellee.
    Gen. No. 9,827.

      Opinion filed December 22, 1942.
    Wilbur E. Johnson, of Rockford, for appellant.
    John E. Goembel and Walker F. Hull, both of Rockford, for appellee; Robert E. Nash, of Rockford, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

This is a garnishment proceeding, here on appeal from a judgment of the circuit court of Winnebago county. The suit grows out of an antecedent judgment for $2,500 in favor of Charles Haskin against John Reell, on account of personal injuries to the plaintiff when struck by an automobile driven by the defendant. The garnishee answered that it had $55.60 on hand belonging to Reell as wages. The interplea of the nominal plaintiff, Reell, set up his discharge in bankruptcy subsequent to the entry of the judgment in the personal injury suit. On a trial by the court without a jury, the court held that the judgment was discharged by the bankruptcy proceeding, entered judgment in favor of the defendant, and Haskin has appealed.

Appellant claims that his judgment against Eeell in the personal injury suit was predicated upon wilful, wanton and malicious conduct of the defendant, and that, therefore, under the terms of section 17 of the Bankruptcy Act (3 Fed. Code, Anno. 182; sec. 35, Title 11, p. 150, U. S. C. A.) Eeell was not released by the bankruptcy proceeding from the debt and obligation of the judgment. Appellee takes the position that the judgment was not so predicated, and that Eeell was discharged therefrom by the proceeding in bankruptcy.

The complaint in the personal injury suit consisted of three counts. The first paragraph of the first count charged that on March 23,1940, the defendant was possessed of a certain automobile which he was then and there operating and driving in a northerly direction upon and along a public highway in Winnebago county, north of the city of Bockford, and commonly known as North Second street and also as U. S. Highway No. 51, in the unincorporated suburban area known as Loves Park, at about the place where North Second street intersects with Pearl avenue; and that the plaintiff was then and there on foot and rightfully upon said highway in the performance of his duty as a deputy sheriff of the county, directing traffic. The second paragraph of the count charged general negligence of the defendant in the management and operation of his automobile. The second count charged unreasonable, high, excessive and illegal speed of the automobile.

The third count adopted the first paragraph of the first count and charged: “That it was then and there the duty of the defendant to. exercise reasonable care and caution in and about the management and operation of said automobile, so as to not cause injury to persons lawfully using the highway. Yet, the defendant, not regarding his duty in that behalf, on to-wit: the date aforesaid, recklessly, wilfully and wantonly operated and drove said automobile upon and along said highway in a northerly direction, as to cause the same to strike upon and against the plaintiff, who was then and there at, and before the time of the collision herein referred to, exercising all due and reasonable care for his own safety, and then and there directing traffic on said highway in said Loves Park, and by reason of the wilful and wanton conduct of said defendant, plaintiff was knocked down to the ground and struck by the automobile driven by said defendant.”

At the close of the testimony for the plaintiff, the court overruled the defendant’s motion for a directed verdict on all the counts, and his separate motion for a directed verdict on the third count. At the close of all the testimony, ruling on like motions was reserved. No special interrogatories on the subject of wilful and wanton conduct were submitted, and there ivas no special finding of the court or the jury on the question. There was no reference thereto in the judgment, and the verdict and the judgment are general in their nature.

' Counsel for appellee contend that the third count is not a wilful and wanton count, but is only an ordinary negligence count and call attention to the fact that it alleged the duty of the defendant and the due care of the plaintiff, and failed to charge that the defendant operated his automobile in such a manner as to have caused the injury complained of at a time when the plaintiff was clearly visible to the defendant, or at a time when the defendant by the exercise of ordinary care and caution, could have seen and observed the presence of the plaintiff.

No case is cited which upholds this contention. On the contrary, it is well settled that an intentional disregard of a known duty necessary to the safety of the person or property of another, and an entire absence of care for the life, person or property of others, such as exhibits a conscious indifference to consequences, • makes a case of constructive or legal wilfulness, such as charges the person whose duty it ivas to exercise care with the consequences of a wilful injury. (Jeneary v. Chicago & Interurban Traction Co., 306 Ill. 392-398; Walldren Express & Van Co. v. Krug, 291 Ill. 471-477.) Thus, the duty of a defendant to exercise care for the safety of others is an element in a charge of wilful and wanton conduct, and is properly included in such a count.

It is also the law in this State that in an action for damages on account of injuries resulting from an alleged wilful violation of a statutory duty, the question of contributory negligence is not a defense and is not involved in the case, and that pleading due care of the plaintiff does not require proof thereof, but is mere surplusage. (Von Boechmann v. Corn Products Refining Co., 274 Ill. 605-612; Carterville Coal Co. v. Abbott, 181 Ill. 495-504.) By analogy, the pleading of due care of the plaintiff in a count otherwise sufficient as a wilful and wanton count, is also mere surplusage. Being so, it' does not change the character of the count into a mere negligence count.

Nor do we regard the failure to allege that plaintiff was clearly visible to the defendant, or that the defendant, by the exercise of ordinary care and caution could have seen and observed the presence of the plaintiff, change the character of this count. While such an allegation would be proper if warranted by the facts, and such a condition would be a matter of competent proof, yet, to say that to constitute wilful and wanton conduct, the - person or object struck must be visible to the party charged, or that by the exercise of ordinary care and caution he could have seen such person or object, would eliminate occurrences in the dark, or where the view was obstructed, such as by intervening objects, or at blind corners, and the like, although the conduct of the defendant might be such as to exhibit a conscious indifference to the consequences, which is sufficient to constitute wilful and wanton conduct. (Walldren Express & Van Co. v. Krug, supra; Jeneary v. Chicago & Interurban Traction Co., supra.)

The case at bar is distinguishable from Harris v. Piggly Wiggly Stores, 236 Ill. App. 392, relied upon byappellee. In that case, the plaintiff, a pedestrian, was struck by the defendant’s truck at a street intersection in the city of Chicago. The counts in controversy did not charge the wilful disregard of a known duty, as the third count in this case does; nor that the defendant wilfully and wantonly drove the truck against the plaintiff, but merely charged that the defendant, by its servant, so wantonly and wilfully drove the truck northward in Wabash avenue across the intersecting street, that by means of the premises the plaintiff was struck and injured. In that case the wilfulness and wantonness charged was limited to the driving of the truck. In the case at bar the charge is that the defendant wilfully and wantonly drove his car so as to cause the same to strike the plaintiff. Thus, the wilfulness and wantonness charged is connected, not only to the driving of the car, but directly to the striking and injury of the plaintiff. Burns v. Chicago & Alton R. Co., 229 Ill. App. 170 is distinguishable on the same ground. A count somewhat similar to the third count in this case was upheld as a wilful and wanton count in Gauss v. Wolter, 233 Ill. App. 353. None of the contentions of appellee, either singly or collectively, tend to show that the third count is a mere negligence count. The facts alleged are clearly sufficient to constitute it a wilful and wanton count.

Under section 17 of the Bankruptcy Act above men.tionéd, a discharge in bankruptcy releases the bankrupt from all his provable debts, except, among others, “liabilities for wilful and malicious injuries to the person or property of another.” The court in In re Greene, 87 F. (2d) 951, after citing numerous cases and authorities said: “Applying to the term ‘wilful and wanton’ the meaning given by our courts and the meaning, of the words themselves constituting such term, it seems that an act done ‘wilfully and wantonly’ is included in the bankruptcy statute, supra, and any judgment obtained because of such act is not dischargeable by bankruptcy. Such an act must be said to have been done wilfully and maliciously, as contemplated by the statute.” In Greene v. Noonan, 372 Ill. 286, an automobile accident case, the court refers to a count charging that the defendant maliciously and wantonly drove his car at a high and dangerous rate of speed, as a wilful and wanton count. This is in line with the holding in In re Greene, supra.

Upon the question of whether the judgment in the personal injury case was predicated on the wilful and wanton count, counsel for appellee argue that the verdict was a “ straight negligence verdict” and that the judgment entered upon it indicates that “there was no intention to involve malice in the action. ’ ’ The answer to this is found in Greene v. Noonan, supra, where the court says: “Where the declaration consists of several counts, one or more of which state a cause of action the gist of which is malice, with others based upon negligence only, and the verdict is general, without specifying the count on which it is based, the presumption is that the verdict is based upon a cause of action of which malice is the gist. (Buck v. Alex, 350 Ill. 167; Jernberg v. Mix, 199 id. 254.)”' There is nothing in the instant case which tends to rebut that presumption, and it is stengthened by the fact that the court instructed the jury on the question of wilful and wanton conduct.

Appellee also relies upon section 5 of the Judgments Act as amended in 1935 (Ill. Rev. Stat. 1941, ch. 77, par. 5 [Jones Ill. Stats. Ann. 107.155]) which reads: “No execution shall issue against the body of the defendant except when the judgment shall have been obtained for a tort committed by such defendant and it shall appear from a special finding of the jury, or from a special finding by the court, if the case is tried by the court without a jury, that malice is the gist of the action, and except when the defendant shall refuse to deliver up his estate for the benefit of his creditors.” Prior to the 1935 amendment this section did not prescribe a special finding that malice was the gist of the action as a prerequisite to the issue of a body execution. Counsel argue that because, under section 5, as amended, no body execution could be issued under the judgment in the personal injury suit, on account of there being no special finding that malice was the gist of the action, it may, with equal logic, be insisted that there is nothing on the face of the record to bar a discharge of the defendant in a bankruptcy proceeding and that,- malice not being the gist of any count of the complaint, the verdict and judgment is incapable of being aided by the doctrine of presumption invoked by appellant on the authority of Greene v. Noonan, supra. It is argued that the doctrine in that case was supplanted, so far as body executions are concerned, by the 1935 amendment to section 5 of the Judgments Act, and that the amendment merely changed the method of establishing malice. Several decisions under that section holding that the special finding of malice is a mandatory requirement for the issue of a body execution are cited and relied upon, but none of them has any application to the issue in this case. The same contention as to the presumption mentioned was made in Greene v. Noonan, supra, and the court said in the opinion: ‘ ‘ Counsel for appellee say, however, that since the amendment in 1935 to the Judgments Act, requiring that no execution shall issue against, the body of the defendant, except when it shall appear from a special finding of the jury, or from a special finding of the court, that malice is the gist of the action, the rule with reference to presumption, just cited, (hereinabove quoted) does not obtain. This amendment to the Judgments Act has nothing to do with a presumption as to how the jury arrived at its verdict. In the first place, it has nothing to do with procedural matters but affects only the remedy. In the second place, it presupposes that the finding of the jury was on a charge of malice.”

We do not agree with the contention that the expressions of the Supreme Court in that case were dictum, or that, notwithstanding the amendment of section 5 of the Judgments Act, the court was seeking to revive the “aider by verdict” or “presumed malice” doctrine. The doctrine announced by the court has long been the. established law in this State, as shown by the cases cited in the opinion. There was no occasion to revive it, but as stated in the opinion, section 5 has nothing to do with the presumption. Appellee advances no reason and cites no authority tending to support the assertion that because Reell could not be imprisoned under the personal injury judgment, he is released by the bankruptcy proceeding from the civil obligation thereof. No such analogy can be drawn. Under Greene v. Noonan, supra, the judgment is presumed to have been predicated upon the wilful and wanton count. The term “wilful and wanton” in that count has the same meaning as the term “wilful and malicious” employed in section 17 of the Bankruptcy Act and under the express terms of that section Reell was not released from civil liability under the judgment.

The judgment of the circuit court is reversed, and the cause is remanded with directions to proceed in accordance with the views herein expressed.

Reversed and remanded with directions.


text:
    Robert Klocksieben et al., v. Minnie Klocksieben Orris et al. Malinda Jersky, Appellee, v. Ernest E. Webber, Executor of Estate of Augusta Pralle, Deceased, Appellant.
    Gen. No. 9,842.
    Opinion filed December 22, 1942.
    Robert A. Meier, Jr., of Chicago Heights, and Victor G. Nardi, of Chicago, for appellant.
    Charles W. Kurtz, of Kankakee, and Jacob Stagman, of Chicago, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

This suit involves the construction of the last will of William Klocksieben, deceased, and particularly the seventh clause thereof. The testator died April 26, 1927. His will, dated June 7, 1920, was admitted to probate in Will county on July 29, 1927.

The second clause of the will bequeathed the testator’s personal property to his wife, Augusta, and gave her a life estate in his real estate.

The third clause provides:

“After the death of my wife Augusta Kloeksieben, I order and direct my executor, hereinafter named, within a period of four years, to sell all of my real estate at the best market value possible, at public or private sale, on such terms as he may deem best, hereby giving’him full right and power to execute such deeds as are necessary to pass good title to all of my real estate which I have directed that he sell. In case my wife should die before my death shall occur then my executor hereinafter named, shall sell my said real estate within a period of four years after my death shall occur on the terms heretofore set forth and the provisions of the Second Clause of this my Last Will and Testament shall be null and void inasmuch as the necessity for the Second Clause will end, should I survive my wife, Augusta Kloeksieben.”

The fourth clause bequeaths $5 to a son Rudolph Kloeksieben after all real estate is sold. The fifth clause bequeaths a like sum to a daughter Alvena Webber. The sixth clause bequeaths $2,000 to Gladys Duzack, a granddaughter. The seventh clause reads:

“The remainder and residue of the money received from the real estate together with all my personal property, should my wife, Augusta Kloeksieben, die before my death shall occur, shall be divided equally among my children who are named in this Seventh Clause' of this, my Last Will and Testament, namely: Anna Niels, Herman Kloeksieben, Robert Kloeksieben, Augusta Pralle, Sophia Pipenbrink and Minnie Klocksieben, share and share alike, to have and to hold forever. Should my son Herman Kloeksieben die before the death of either myself or my wife, Augusta Klocksieben shall occur, then my children who shall survive him and who are named in this Seventh Clause shall have his share divided equally among them, share and share alike. In case any of my children shall die then it is my will and desire that the heirs of his or her body shall have the parent’s share the same as though the parent were living except that in no case will the heir or heirs of my son Herman Kloeksieben have any part of my estate whatsoever.”

Augusta Kloeksieben, the widow, died February 25, 1940. Thereafter, the executor having been discharged as such by the probate court of Will county, a suit to construe the will and for the appointment of a trustee to manage and sell the real estate was filed in the circuit court of Kankakee county. A decree was entered on July 25, 1940, appointing the former executor as such trustee, and ordering that out of the proceeds of the sale of the real estate one-sixth thereof be paid too Augusta Pralle, one of the daughters named in the seventh clause of the will. The decree made other provisions not material here, and retained jurisdiction of the cause.

Augusta Pralle died testate in Cook county in February 1941, before receiving any part of her father’s estate. Her last will, admitted to probate in Cook county, after devises of real estate not here involved, bequeaths her personal estate to her two daughters, Malinda Jersky (appellee here) and Viola Luecke, and three named grand-children, Janet Joan Luecke, Grlenn Norbert Luecke and Huntley Dale Hartman, or the survivors of them, share and share alike.

The issue involved herein arises out of the disposition to be made of the share of Augusta Pralle in the proceeds of the sale of her father’s real estate. After her mother’s death, appellee, Malinda Jersky, filed a motion in the circuit court on December 27, 1941, reciting her mother’s death in Cook county, alleging that she left surviving her appellee as one of her two heirs-at-law; that administration of her mother’s estate is being had in Cook county, but no part of the William Kloeksieben estate belongs to or should become a part of her mother’s estate; that the administrator or executor of her mother’s estate is claiming the right to the possession of the Augusta Pralle interest and that the trustee might pay it to him unless otherwise ordered by the court, and prays for an order instructing the trustee to pay her any and all sums accruing or hereafter to accrue as her interest shall appear.

Appellant, as executor of the estate of Augusta Pralle, answered the motion, setting up the terms of her will, and claiming that at the death of her father and mother she became seized of a definite share in the real estate of her father or the proceeds thereof, that the same is a part of her estate, and that the petition should be denied. The trial court entered a o decree in conformity with the prayer of the motion, from which decree the executor of the Augusta Pralle estate has appealed.

Appellant relies upon the vesting of the share of Augusta Pralle in her at the time of her father’s death as the basis of his claim that it now belongs to her estate. Appellee claims that the testator intended it should not vest until the time for the distribution of the proceeds of the sale of the real estate, and that therefore it was contingent upon her surviving the time of distribution, citing Ebey v. Adams, 135 Ill. 80; Johnson v. Askey, 190 Ill. 58; Starr v. Willoughby, 218 Ill. 485; and Easton v. Hall, 323 Ill. 397.

In support of his contention, appellant relies upon and quotes from Riddle v. Killian, 366 Ill. 294, 302, 303, as follows:

“The distinction between vested and contingent remainders has been precisely stated by Professor Gray. ‘Whether a remainder is vested or contingent,’ he states, ‘depends upon the language employed. If the conditional element is incorporated into the description of, or into the gift to the remainderman, then the remainder is contingent; but if, after words giving a vested interest, a clause is added divesting it, the remainder is vested.’ ”

Although, under Gray’s rule, the language employed by the testator in the case at bar constituted a vested remainder in Ms cMldren, effective at the time of the testator’s death, the rule does not carry any implication that such a gift is indefeasible. It follows therefore, that if the gift to Augusta Pralle was defeasible by her death prior to the time of distribution, the fact that it was a vested remainder at the time of the testator’s death is not controlling.

In People v. Allen, 313 Ill. 156, a will gave the widow the testator’s personal property absolutely, and a life estate in his real estate. The remainder of the real estate he devised to one of his daughters as trustee with directions to convert it into money as soon as practicable after the widow’s death. Out of the proceeds the trustee was directed to establish a trust fund for one of the testator’s daughters, and it was further provided: “The balance of the proceeds of such sales shall be distributed by her between my children (naming them) and herself, share and share alike, the children of any of my said cMldren who may be deceased to take its or their parent’s share.” The court held that the interest created by this clause was vested. The opinion refers to some of the cases relied upon by appellee herein and points out that there was language employed in each of the opinions in those cases which suggests that the gifts were contingent upon the legatee surviving the period of distribution, but goes on to state that such expressions were dicta and contrary to many decisions of the court. However, the court said in the opinion on page 160:

“In all these cases it was properly held that the children of a deceased legatee took the whole share of the legatee by virtue of the gift over and thereby cut out the spouse of the legatee and the devisees of the legatee. ... In the event of the death of one of the children before the death of the life tenant that child’s interest would vest in her children if she left children surviving; if not, her interest would descend to her heirs.”

There is no difference in principle between that case and the case at bar. Under that holding, the vested remainder in Augusta Pralle was defeated by her death prior to the time of distribution, and her two daughters, as the heirs of her body, by the gift over in the will, were substituted. This manifestly conforms to the intention of the testator, and such intention, not being in conflict with any law or public policy, must be given effect. (Brumsey v. Brumsey, 351 Ill. 414.)

Grimmer v. Friederich, 164 Ill. 245; Heller v. Schwarz, 158 Ill. App. 326; and Henderson v. Cadwalader, 202 Ill. App. 351, relied upon by appellant, where there was no express gift over in case of the death of a remainderman, are not in point.

The decree of the circuit court was correct and is affirmed.

Decree affirmed.