text:
    In re Estate of Harry Edwards, Deceased. Eleanor Edwards Westen, Appellant, v. Henry C. Warner, Executor, Appellee.
    Gen. No. 9,727.

      Heard in this court at the October term, 1941.
    Opinion filed January 14, 1942.
    Pines, Stein & Beber, of Chicago, and Dixon, Devine, Bracken & Dixon, of Dixon, for appellant; George S. Pines and Harold L. Lipton, both of Chicago, and Robert L. Bracken, of Dixon, of counsel.
    Henry C. Warner, pro se, and Morey C. Pires, of Dixon, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

The county court of Lee county, and the circuit court, on appeal, allowed appellee the sum of $12,000 for Ms services as executor of the last will of Harry Edwards, deceased. Appellant, the widow of the decedent, has appealed to this court from the order of the circuit court, on the ground that the amount allowed is excessive and exorbitant.

The decedent was for many years a judge of the Fifteenth Judicial Circuit, and for some years prior to Ms death, was a judge of the Appellate Court for the Fourth District. He died testate on October 27, 1939. Appellee has been engaged in the general practice of law at Dixon in Lee county for more than 35 years. During that period he was closely affiliated with decedent and made all of his financial investments. The will, which named appellee as executor without bond, gave appellant one half of all the testator’s property, and the residue to appellee in trust, for the benefit of the testator’s brother and the brother’s wife during their respective lives, and then to a nephew of the testator absolutely.

The gross value of the estate was at least $247, 552.89. There was approximately $155,000 in U. S. Treasury Bonds, Federal Farm Mortgage Corporation Bonds, and U. S. Savings Bonds. The remainder of the estate consisted principally of shares of preferred stock in the Dixon National Bank, real estate mortgages, notes, cash, two automobiles, and a house valued at $5,650.

Appellee testified he prepared the petition for probate of the will, procured waivers of notice from all the interested parties, examined the witnesses on the hearing, procured an order admitting the will to probate, took the oath, and at the suggestion of the court gave a bond of $25,000; that he gave the preliminary notice required by the TJ. S. Government, prepared an application for inheritance tax consents by this State, inventoried the contents of decedent’s safety-deposit box, made copies for each of the interested parties, filed) one copy with the inheritance tax department of this State, and rechecked the contents of the safety-deposit box; that he gave notice to creditors, obtained proof of publication and an order approving the notice, prepared and filed an inventory of the estate, and a request for the appointment of appraisers; that after sundry conferences with the parties, an award for the widow was fixed by agreement at $5,000, the household goods and one automobile; that thereupon he petitioned for a withdrawal of the warrant to appraisers and obtained an order waiving the necessity of an appraisement or fixing an award; that to provide against any emergency, he rented another safety-deposit box in another bank, divided the securities, and made lists of the contents of each box for ready reference; that 29 claims were filed, checked, and lists prepared and submitted to the parties, and a stipulation was made allowing all of them except one, which after investigation, was also allowed; that in his opinion, only one asset of the estate, a $4,000 mortgage inherited by the decedent from his father on land in Iowa 440 miles from Dixon, could not be collected in full; that he made two trips to Iowa concerning its disposal, persuaded the owner of the land to make an application for a federal loan, and obtained the written agreements of the parties interested, but the landowner was unable to borrow enough to pay the mortgage in full; that there was a dispute as to whether another mortgagor had paid interest in advance, and after a conference with the parties, the principal of the mortgage was paid in full; that after defaults in interest on another mortgage and the mortgagor’s failure to execute an extension agreement, foreclosure was filed and the mortgage was then paid in full; that interest on another mortgage in default at decedent’s death was col-due for past years on account of insufficient returns review in connection with their claims that taxes were that he attended two or three hearings of the board of lected in full; that he prepared the local tax return for 1940 and secured the approval of appellant’s attorneys; to the assessor; that he examined the schedules for previous years, presented the law; to the board and successfully resisted the claim; that at the request of appellant’s attorneys he prepared another copy of the inventory with notations in writing concerning each item, especially as to farm mortgages; that he prepared the State and Federal inheritance tax returns, had conferences with the inheritance tax attorneys and other persons, all of which took considerable time; that he procured $800 for decedent’s law books, for which he was first offered $400; that he prepared affidavits and secured duplicate certificates of title for the autopiobiles, the originals being lost; that he made a partial distribution which required petitions and orders for the different securities; that he obtained written consents from all the parties for the distribution, and prepared and took receipts as the securities were turned over; that he procured the State Treasurer’s consent to a transfer of the bank stock, which was divided between the widow and the trustee; prepared income tax returns for 1939 and 1940, which were difficult because of no returns in previous years, and the fact that decedent’s salary, formerly exempt, was taxable and had been increased in 1939; that he had two conferences in Chicago with appellant’s attorneys at their request, at the first of which he was informed that if his fee exceeded $3,000 it would be contested.

Manifestly the detailed work in connection with the services above-mentioned took considerable time. Appellee testified he spent between 900 and 1,000 hours in services necessarily rendered the estate. None of his testimony is disputed. Four practicing attorneys of long experience testified the usual, reasonable and customary fee for the services rendered is $12,000 and two of them placed it at from $12,000 to $14,000 or $15,000. Two of them reside in Dixon. Two of them live at Sterling in the adjoining county of Whiteside and testified they are familiar with the usual, reasonable and customary fees in both counties. A trust officer from each of the following Chicago institutions: Harris Trust and Savings Bank, First National Bank of Chicago, Northern Trust Company and American National Bank and Trust Company, identified printed schedules of fees charged by those institutions for acting as administrator or executor. For estates of $100,000 to $250,000 the charges in the schedules are from 2½ per cent to 3 per cent of the gross estate. None of them purports to he based upon the value of services actually rendered. Nobody testified the fees mentioned in the schedules would be the reasonable or the usual and customary fees for the services rendered in this case, or that $12,000 was unreasonable or was not the usual and customary charge. Section 336 of the Administration Act (Ill. Rev. Stat. 1941, ch. 3, par. 490 [Jones Ill. Stats. Ann. 110.587]) provides that an executor, or other legal representative named, shall be allowed reasonable compensation for his services. The proofs here -more than meet the requirements of the statute, and there is no proof to the contrary. The schedules introduced in evidence by appellant, being based only on the value of the estate without regard to services rendered, would under the terms of the statute, be an improper basis for fixing compensation.

The reasonableness of the commission or fee to an executor depends upon the circumstances in each case. (Martin v. Central Trust Co., 327 Ill. 622.) In that case, cited by appellant, an allowance of $1,100 as executor’s fee, where the estate in Illinois was only $16,600 was reversed. The evidence showed the customary, usual and reasonable fee in estates less than $50,000 did not exceed 3 per cent. Obviously that holding is not applicable here.

The holding in the early case of Willard v. Bassett, 27 Ill. 37, that, an administrator or executor could not take the office as a business or as a means of making money, but that it was to a certain extent associated with the idea of benevolence or philanthropy, is no longer applicable. In conformity with the customs and necessities of vastly increased business, trade and commerce, it is now recognized as a business, with statutory provisions authorizing banks and trust companies to engage therein, and a provision that anybody so acting shall be allowed reasonable compensation. So, too, the holding in Colton v. Coffey, 187 Ill. App. 558, where an estate of $100,000 consisted principally of bonds on deposit in a bank, and the administrator had little to do, has no application here. The court in that case allowed him $1,500 where the attorney for the estate had done much of his work.

In Elder v. Whittemore, 51 Ill. App. 662, an administrator’s commission in an estate of $300,000, consisting, mostly of notes secured by mortgage and some municipal bonds, was allowed at 6 per cent, the maximum permitted by the statute. The court rejected the claim that the fee was unreasonable considering the size of the estate and that it was in such condition as to be settled with comparatively little difficulty or labor.

Appellee assumed personal responsibility for all the personal assets, their preservation, the collection of current accruals, and the efficient and proper administration and distribution of this large estate. Appellant’s counsel in the argument say they doubt that more than a certain number of hours could have been spent in the respective activities mentioned, summarizing with an estimate of 208 total hours. The weakness of their assumption is demonstrated by their own estimates, which it is impracticable to detail here. Their claim that under Litwin v. Litwin, 375 Ill. 90, appellee is required to show the hours spent in each activity is without merit. That case involves the duty of a master in chancery to itemize his fees. No such duty is imposed upon an executor by the statute, and no case is cited where it has been required by the court. If appellant desired to question the testimony as to the time necessarily spent, she had the opportunity to do so on cross-examination or by other testimony. Not having done so, appellee’s testimony stands uncontradicted, and its sufficiency was not questioned in either court below. It is now too late to do so.

The inventory alone covers 11 pages of the record. There were 128 separate bonds and 33 notes and mortgages of various maturities as to both principal and interest. Considering the large number of items, with the various maturities, it is apparent that much time was necessarily required in keeping track of the maturities, collecting and accounting. The preparation of the inheritance and income tax returns alone required both time and skill. The other activities mentioned likewise took considerable time. All of them required a high order of skill, under a personal responsibility for accuracy, efficient administration and fidelity. No criticism is found in the record of the manner in which the executor performed the duties imposed upon him. It is not claimed that appellee did not perform the services well and to the advantage of the estate; nor could there be. The evidence shows he carried out his duties diligently and efficiently. Appellee does not claim any of his services were rendered as an attorney, but the record shows the estate was saved the expense of an attorney fee. In our opinion, appellee did not exaggerate the time necessarily spent in the service he rendered the estate. He fixed no fee for his services, nor expressed any opinion as to their value, but detailed what he did. He was entrusted by the testator to execute the desires he expressed in his will. He did so in an acceptable manner. The testator knew from his experience that he would be compensated for so doing out of the assets of the estate he administered. Four disinterested competent lawyers and two courts have fixed the amount of his compensation at $12,000 for the services he rendered. All of the evidence is that this amount is reasonable compensation for those services. The order of the circuit court is therefore affirmed.

Order affirmed.


source: Caselaw Access Project

author: Opinion by Presiding Justice Hates.

license: Public Domain

text:
    Industrial Roofing Company, Trading as Construction Materials Company, Appellees, v. Cora Meek, Appellant, G. W. Piatt et al., Copartners, Trading as G. W. Piatt & Sons, Appellee.
    Gen. No. 9,234.
    Heard in this court at April term, 1941;
    opinion filed November 3, 1941;
    rehearing denied February 3, 1942.
    Harry I. Hannah and Thomas R. Figenbaum, for appellant; Roger Fruin, of counsel; Craig & Craig, for appellee Industrial Roofing Co., and W. K. Kidwell, for appellee G. W. Piatt & Sons.
   Opinion by Presiding Justice Hates.

“Not to be published in full.”


author: Opinion by Presiding Justice Burke.

text:
    Bernhart Karp, Appellee, v. Harold J. Finder, Appellant.
    Gen. No. 41,593.
    Heard in third division, first district, this court at February term, 1941;
    opinion filed January 7, 1942.
    Archie Schimberg, for appellant; Samuel J. Horwitz and Arthur J. Bernstein, for appellee.
   Opinion by Presiding Justice Burke.

“Not to be published in full.”


text:
    Reilly Tar and Chemical Corporation, Appellant, v. Francis J. Lewis, Appellee.
    Gen. No. 41,697.
    Heard in third division, first district, this court at April term, 1941;
    opinion filed January 7, 1942;
    rehearing denied January 22, 1942.
    W. M. Keeley and Royal W. Irwin, for appellant; A. B. Manion, for appellee.
   Opinion by Presiding Justice Burke.

“Not to be published in full.”


text:
    Jacob L. Hirning and Wilhelmina Hirning, Appellees, v. Contracting and Material Company et al., Appellants.
    Gen. No. 41,719.
    Heard in third division, first district, this court at June term, 1941;
    opinion filed January 7, 1942;
    rehearing denied January 22, 1942.
    Rawlins & Wright, for certain appellant; Cassels, Potter & Bentley, for certain other appellants; H. G. Marshall and Leslie H. Vogel, of counsel; Irving N. Stenn and Marion J. Hannigan, for appellees.
   Opinion by Presiding Justice Burke.

“Not to be published in full.”


text:
    Bernice Grossman, Appellee, v. Herman Grossman, Appellant.
    Gen. No. 41,768.

      Heard in third division, first district,, this court at June term, 1941;
    opinion filed January 7, 1942.
    Russell J. Topper, for appellant; Turner & Turner, for appellee; Maurice Turner, of counsel.
   Opinion by Presiding Justice Burke.

“Not to be published in full.”


author: Opinion by Justice Hebel.

text:
    Frank Brogni, Appellant, v. Chicago Title and Trust Company, Trustee, et al., Appellees.
    Gen. No. 41,710.
    Heard in third division, first district, this court at April term, 1941;
    opinion filed January 7, 1942.
    Henry W. Kenoe, for appellant; Harold L. Reeve and A. Edmund Peterson, for certain appellee; A. Edmund Peterson, of counsel.
   Opinion by Justice Hebel.

“Not to be published in full.”


text:
    Winifred Burke, Appellee, v. Piper’s Super Service Stations, Appellant.
    Gen. No. 41,725.

      Heard in third division, first district, this court at June term, 1941;
    opinion filed January 7, 1942;
    rehearing denied January 22, 1942.
    George C. Bliss and Abraham Lepine, for appellant; Roderick N. Wyckoff and Werner W. Schroeder, for appellee.
   Opinion by Justice Hebel.

“Not to be published in full.”


author: Opinion by Presiding Justice Huffman.

text:
    National Mirror Works, Appellee, v. J. C. Thoren, Appellant.
    Gen. No. 9,694.
    Heard in this court at October term, 1941;
    opinion filed January 14, 1942.
    Wilbur E. Johnson, for appellant; William H. Gates, for appellee.
   Opinion by Presiding Justice Huffman.

“Not to be published in full”


author: Opinion by Presiding Justice Huffman".

text:
    People of the State of Illinois, Defendant in Error, v. Paul Siex, Plaintiff in Error.
    Gen. No. 9,724.

      Heard in this court at October term, 1941;
    opinion filed January 14, 1942.
    Arthur G. Harris and Mark C. Keller, for plaintiff in error; L. L. Winn, Statens Attorney, for defendant in error.
   Opinion by Presiding Justice Huffman".

“Not to be published in full.”


text:
    Frank E. Wingert, Appellee, v. Emma Wingert, Appellant.
    Gen. No. 9,728.
    Heard in this court at October term, 1941;
    opinion filed January 14, 1942.
    Dixon, Devine, Bracken & Dixon, for appellant; E. E. Wingert, for appellee.
   Opinion by Presiding Justice Huffman.

“Not to be published in full.”


text:
    Lloyd Smith, Appellant, v. Helen Bruner and Nelson Bruner, Appellees.
    Gen. No. 9,731.
    Heard in this court at October term, 1941;
    opinion filed January 14, 1942.
    C. A. Pedderson and Lisle W. Menzimer, for appellant; Frank A. Kerr, for appellees.
   Opinion by Presiding Justice Huffman.

“Not to be published in full.”


author: Opinion by Justice Dove.

text:
    Mary E. Woodworth, Appellant, v. N. P. Nelson and Anna Sandin, Appellees.
    Gen. No. 9,720.
    Heard in this court at October term, 1941;
    opinion filed January 14, 1942.
    Charles L. Linscott, for appellant; Welsh & Welsh and Wilbur Johnson, for appellees.
   Opinion by Justice Dove.

“Not to be published in full.”


text:
    Trustees of Schools of Township No. 20, Range No. 5, Whiteside County, Illinois, Appellant, v. Central National Bank of Sterling, Illinois, Appellee.
    Gen. No. 9,730.

      Heard in this court at October term, 1941;
    opinion filed January 14, 1942.
    Ramsay, Bull & Yost, for appellant; Ward & Ward, for appellee.
   Opinion by Justice Dove.

“Not to be published in full.’’


author: Mr. Justice Dady

text:
    Cairo Lumber Company, Inc., Appellant, v. Kate Ladenberger and Charles M. Corwin, Appellees.

      Opinion filed November 1, 1941.
    Rehearing denied February 24, 1942.
    Louis L. Mason, of Decatur, for appellant.
    Wilbourn & Twente, of Cairo, for appellee.
   Mr. Justice Dady

delivered the opinion of the court.

The plaintiff, Cairo Lumber Company, a corporation, filed a creditor’s suit in the circuit court of Alexander county to set aside certain conveyances of real estate from defendant Kate Ladenberger to her son and codefendant Charles M. Corwin. The suit was dismissed for want of equity, and plaintiff has taken this appeal.

Kate Ladenberger was indebted to the plaintiff for building materials. To evidence her obligation, she executed two judgment notes payable to the plaintiff, one for $237.70 dated February 1, 1932, due May 1, 1932, and the other for $797.41 dated September 1, 1932, due September 1, 1933. Nothing was ever paid on either of these notes.

At the time these notes were executed the real estate owned by Kate Ladenberger consisted of forty-two lots and two half lots in the city of Cairo, Illinois, and two town lots, improved with seven store buildings, in Sikeston, Missouri.

During 1933 and 1934 all of this real estate was conveyed by Kate Ladenberger, then a widow, to Charles M. Corwin. Forty of the lots, and the two half lots, in the city of Cairo were transferred by three deeds. The first deed was dated February 14, 1933, and recited “love and affection” as the consideration. The other two deeds were dated March 1, 1933, one reciting ‘ ‘ One dollar and other consideration,” and the other reciting “love and affection,” as the respective considerations. All three deeds were recorded on August 4,1933. The real estate in Sikeston, Missouri, was transferred on August 27, 1934, for a recited consideration of “One Dollar.” The remaining two lots in Cairo, valued at $6,000, were conveyed by two deeds dated December 1, 1934, each reciting “One dollar” as the consideration, which deeds were recorded on June 8, 1935.

On September 21, 1939, plaintiff took judgment on the two notes against Kate Ladenberger for $1,551.99. On the same day an execution was issued on the judgment and delivered to the sheriff, who returned it on October 10, 1939, unsatisfied and with the indorsement that he could not find in his county any property of the defendant subject to levy and sale out of which to make the amount of the execution.

The complaint, filed herein on October 11, 1939, alleged that the transfers of the real estate in Cairo were fraudulent and made without any consideration and for the purpose of hindering and delaying the collection of the plaintiff’s notes, and prayed that the transfers be set aside as fraudulent against the plaintiff. By their answers the defendants admitted the making of the transfers but denied that they were fraudulent and made for the purpose of hindering and delaying the plaintiff in the collection of the notes. Their answers further alleged that the transfers of real estate were made for a valuable consideration, and that at the time of and after the making of such conveyances Kate Ladenberger retained real estate of the value of more than $30,000 and personal property of the value of more than $5,000 and was worth over all of her indebtedness more than $30,000 at the time she made the last conveyance to Corwin. Corwin, in addition, set up the defense of laches in his answer. No replication or reply was filed by-the plaintiff to the answers of the defendants.

The cause was heard in open court, and the court entered a decree dismissing the complaint for want of equity. The only finding in the decree was that Kate Ladenberger retained ample assets to pay her just debts at the time she deeded most of her real estate to her son Charles M. Corwin, and that said deeds were not made in fraud of creditors.”

The first question to determine is whether or not the transfers from Kate Ladenberger to Charles M. Cor-win were made for a full and adequate consideration. The trial court made no finding on this question. If the proof discloses that the transfers were voluntary and made without consideration or merely for a nominal consideration, the validity of such transfers as against the plaintiff must be determined by the principles set forth in the case of Birney v. Solomon, 348 Ill. 410, in which case the court said: ‘ ‘ The established rule in this State does not require proof of actual insolvency in order to render a voluntary conveyance void, especially when the conveyance is between husband and wife or parent and child. The true test in determining the validity of a voluntary conveyance as against creditors in such a case is whether or not it directly tended to or did impair the rights of creditors. It is of no moment that the property remaining in the grantor’s hands after the conveyance was in nominal value more than equal to the amount of his indebtedness if subsequent events show that the property retained was not sufficient to discharge all his liabilities. . . . The doctrine is firmly declared to be that one must be just before he is generous. What may be in the mind of the grantor when he makes a voluntary conveyance to his wife or child is immaterial, for if it results in hindering, delaying or defrauding creditors it must be regarded as fraudulent. A donor may make a conveyance with the most upright intentions, and yet, if the transfer hinders, delays or defrauds his creditors it may be set aside as fraudulent. ... Of such force is this rule that where one is found to be insolvent after having made a voluntary convey aneé to his wife the burden of dispelling the implication of fraud as against pre-existing creditors is upon his grantee.”

Defendants contend that proof of insolvency of the grantor at the time- of the conveyances is essential in order to set aside a voluntary conveyance and as authority for this contention cite the case of State Bank of Clinton v. Barnett, 250 Ill. 312. Some expressions in that case indicate that such proof is required but we think the correct rule is the one laid down by the more recent case of Birney v. Solomon quoted above, wherein it is stated that proof of actual insolvency is not necessary. See Wright v. Risser, 290 Ill. App. 576 to the same effect.

Corwin resided alone with his mother at the time of the transfers and had lived with her in her homestead for more than seven years immediately prior thereto. After the transfers they continued to and still do live together. In Bartel v. Zimmerman, 293 Ill. 154, it was said: “While a conveyance between parties related to each other by blood or marriage does not, of itself, establish fraud in the transfer, the fact of relationship may properly be considered in connection with other evidence tending to impeach the transaction. . . . Intent to defraud is sometimes implied from the relationship of the parties in connection with other circumstances.”

All of the deeds recited either “love and affection” as the consideration or merely a nominal consideration of “One Dollar.” Conveyances based on love and affection or on merely a nominal consideration are considered voluntary and without consideration in so far as the rights of pre-existing creditors against the grantors are concerned. (Oswald v. Nehls, 233 Ill. 438, 445.)

Kate Ladenberger did not testify. Corwin testified that prior to 1926 he was a traveling salesman earning $200 a month and expenses; that in 1926 after his stepfather died he quit his employment, at the request of his mother, and thereafter lived with her, she then being aged 62 years; that she asked him to take care of her property and agreed to give it to him; that from 1926 on he took care of it, collecting rents and seeing that repairs were made, devoting his full time; and that she never paid bim anything for such services until the deeds were made. This is the only testimony relied upon to show that the conveyances were made for a good and valuable consideration. In Bartel v. Zimmerman, supra, the court said: “. . . where an immediate member of a family is preferred as a creditor there must be clear and satisfactory proof of a valid and subsisting debt which would be enforced and payment exacted regardless of the fortune or misfortune of the debtor.” Corwin’s testimony uncorroborated is far from clear and satisfactory proof of the existence of a bona fide debt or an agreement to convey the property in question for the claimed services rendered by Corwin. This purported agreement between mother and son rested in parol. No record or memorandum of any kind was made to evidence the same. The evidence shows that the mother, by the transfers, conveyed all of her real estate, including her homestead, within a short period of one year and nine months. This real estate was worth approximately $30,000 and included the property in Sikeston, Missouri, which was later sold by the son for $22,500. The son admitted that the only consideration for the transfer of the Missouri property was “One Dollar.” The claim that the services constituted the consideration for the conveyances is not only contradicted by the recitals in the deeds but by the inherent improbability of a person, situated as the mother was in this case, conveying all of her real estate valued at $30,000, including her homestead, without receiving any money, but for a vague and uncertain claim for past services. Such testimony may be disregarded in its entirety when considered in the light of the circumstances surrounding the transactions. (Hadley v. White, 367 Ill. 406.) The failure of the mother to testify with reference to the consideration is highly significant since she and her son were the only ones who had full and complete knowledge of the actual consideration, if any, which was given for the transfers. (McKey v. Cochran, 262 Ill. 376, 385.) Another circumstance which indicates and throws suspicion upon the transfers was the failure of Corwin to demand a conveyance of the lands between 1926 and 1933, followed by a transfer of most of the Illinois property immediately prior to the maturity of the second note held by the plaintiff. If she had agreed to compensate him by deeding such real estate to him the ordinary and natural procedure would have been to make all of such transfers at one time, instead of at different times over such period of twenty-one months. These facts lead us to the conclusion that the transfers were not made for a bona fide debt but were merely voluntary, and without a full and adequate consideration.

Since the conveyances were voluntary, it was incumbent on defendants to show that Kate Ladenberger retained ample property after the conveyances to pay the plaintiff’s claim. (Murrie v. Carter, 222 Ill. App. 447.)

The property retained by the grantor, under the authorities, must be sufficient in fact and readily available for the satisfaction of the creditors. In this connection the following is said in 27 Corpus Juris, at page 552: “It is essential to the validity of a voluntary conveyance as against existing creditors that the property retained by the donor on making the conveyance is readily available for the satisfaction of their claims by legal process. The law looks to the attainment of practical results, and a solvency which it cannot employ in the payment of the debts of an unwilling debtor is certainly not distinguishable by any valuable difference from insolvency. If the property retained is such that it cannot be sold under execution or attachment, or is located in another state, or is concealed in the names of third persons, or is encumbered so as to necessitate litigation to reach the property, or is such as cannot be reached by creditors without some affirmative action on the part of the debtor himself, it will not avail.’-’ Defendants contend that the evidence supports the finding of the court that ample property was retained. We cannot agree with this contention. By their verified answers defendants alleged that Kate Ladenberger retained more than $30,000 in real estate, but the uncontradicted testimony of Corwin is that no real estate of any kind was retained by his mother after the last transfer. At the trial Corwin, contrary to the allegation in the verified answers that she retained personal property of the value of $5,000, testified that after the transfers his mother owned stock of the par value of $25,000 and “maybe $5,000” worth of jewelry and $1,600 on deposit in a closed bank, and “she might have had some money at home but it couldn’t have been a very great amount.” This is the only property claimed to have been retained by Kate Ladenberger.

The speculative and uncertain character of this property, so retained by the mother, is clearly evident from the evidence. Corwin testified that he did not know the name of the stocks, some being oil stocks and some being railroad stocks; that he did not know in whose name the stock certificates were issued; that he had seen the stocks but didn’t know where the stocks were or the number of shares or whether they were listed or unlisted stocks, and did not know the list value of the stocks or the value of the stocks as of June 8, 1935, except what his mother had told him; that the jewelry consisted entirely of diamond rings and he based the value of the jewelry on what it was bought for; that the jewelry was at his home in his desk in his mother’s room. Kate Ladenberger failed to testify with reference to the property which she retained.

The president of the plaintiff corporation testified that shortly after the notes became due he called on Mrs. Ladenberger at her home to make some arrangement as to the payment thereof and at that time she cried and said they were not able to meet their bills, were not collecting rents and she did not see how she could do anything toward making any payments. This testimony was not denied and contradicts the claim 'that Mrs. Ladenberger at that time had any assets to-pay the claim of the plaintiff. No showing whatever was made as to the actual value of the stocks retained. The evidence shows that the jewelry was not in possession of the mother but was in the possession of the defendant Corwin. We cannot consider money on deposit in a closed bank as an asset readily available to a creditor.

We think it manifest after a consideration of the evidence that the property claimed to have been retained was wholly insufficient and unavailable for the payment of the plaintiff’s claims, and that the conveyances in question tended to and did impair the rights of plaintiff as a creditor of Kate Ladenberger.

Defendant Corwin further contends that the plaintiff was guilty of laches. There is no evidence in the record showing or tending to show that defendants were in any way prejudiced by plaintiff’s delay in bringing suit. As stated in Chicago Medical School v. Wilson, 341 Ill. 170, “A. court of equity will apply the doctrine of laches in denial of relief only where, from all the circumstances, to grant the relief to which the complainant would otherwise be entitled will presumptively be inequitable and unjust because of the delay. . . . The defense of laches can be considered only when by delay and neglect to assert a right the adverse party is lulled into doing that which he would not have done or into omitting to do that which he would have done in reference to the property involved had the right been properly asserted.” In Totten v. Totten, 294 Ill. 70, at page 88, the court said “A court of equity will be slow to apply the doctrine of laches when there is no change in the situation of the parties since the execution of the instrument in question.” No change in the situation of the defendant Corwin or his mother is shown. No rights of third parties have intervened. No claim is made that Corwin made valuable improvements or otherwise changed his position with reference to the real' estate, thereby making it inequitable for the court to enforce the plaintiff’s claim at this time. So far as the record shows Corwin in no way has been prejudiced by the delay and apparently his situation was exactly the same when the litigation was instituted as it was at the time the transfers were made. Under the circumstances presented the doctrine of laches cannot be invoked against the plaintiff.

Finally, defendants contend that because plaintiff failed to file a replication to the answers, the plaintiff admits the defense of laches and the allegation contained in the answers that Kate Ladenberger did retain ample property after the transfers to pay her creditors. In support of such contention the case of Watt v. Cecil, 368 Ill. 510 is cited. In the Watt v. Cecil case no testimony was heard on the issue in question, whereas in the case at bar the parties took testimony on the issues with reference to laches and on the question of retention of assets by the mother. Under such circumstances, the filing of a replication was waived. (Ford Motor Co. v. National Bond & Investment Co., 294 Ill. App. 585.)

The court erred in dismissing the complaint for want of equity and should have entered a decree granting the relief prayed for in the complaint.

The decree of the trial court is therefore reversed' and the cause is remanded to that court with directions to enter a decree in favor of the plaintiff as prayed in the complaint.

Reversed and remanded with directions.


author: Mr. Presiding Justice Stone

text:
    Henry Gunn, Appellant, v. J. R. Britt, Appellee.
    Opinion filed November 1, 1941.
    Modified opinion and rehearing denied February 3, 1942.
    J. Kelly Smith, of Mounds, for appellant.
    Donald A. Miller, of Cairo, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an appeal by Henry Gunn, appellant (hereinafter designated as plaintiff) from an order of the circuit court of Pulaski county, dismissing an appeal from the court of a justice of the peace, in which court, J. B. Britt, appellee (hereinafter designated as defendant) was defendant and said Gunn was plaintiff. Judgment was entered in the justice of the peace court, in favor of plaintiff in the sum of $292 and costs of suit, from which appeal was taken by defendant. On April 24,1940, one of the days of the April term of the circuit court, of Pulaski county, after the case was regularly set for trial, said case was reached on the call. Neither defendant or his counsel being present in court, motion was made to dismiss the appeal by the attorney for the plaintiff. Motion was allowed and the appeal dismissed, with procedendo to the justice of the peace.

After the adjournment of the April term, on August 22, 1940, during the July term of the court, attorney for the defendant filed his motion to vacate the order dismissing the appeal, date of April 24, 1940, and to reinstate the case on the docket for trial. On August 27, 1941, plaintiff filed his motion to strike the above motion. By agreement of parties both motions were heard together. The trial court overruled plaintiff’s motion to strike and sustained defendant’s motion to vacate the order dismissing the appeal. From that particular order this appeal is prosecuted.

It is argued on behalf of plaintiff that the court was without jurisdiction to enter the order complained of, owing to the fact that more than 30 days had elapsed since the entry of the original judgment dismissing the appeal.

Motion to reinstate filed on behalf of the defendant, stated that defendant was not notified and did not have knowledge or notice of the setting of this case for trial in the circuit court; that defendant was represented in the trial before the justice of the peace by Attorney O. S. Miller, now deceased; that the court docket had no notation of the name of counsel for defendant; that plaintiff and his attorney both knew that defendant was represented by counsel at the trial before the justice of the peace and also that Donald A. Miller had taken over the legal matters of Attorney C. S. Miller, deceased; that said Donald A. Miller had no notice or knowledge of the case being set for trial; that the first knowledge or notice of the calling of this case for trial and dismissal of defendant’s appeal which was had by either defendant or his attorney, Donald A. Miller, was when a writ of execution was served on defendant. The motion also avers that defendant had a meritorious defense, and briefly sets up the facts alleged to constitute such defense.

The motion filed on behalf of plaintiff avers that a full, fair trial of the case was had on the merits in the justice of the peace court, that the appeal had been pending for more than two years in the circuit court with no effort on the part of defendant to bring said appeal to trial; that the case was regularly set for trial at the April term of the circuit court, and that printed or typewritten notices of the setting was sent to all attorneys, including counsel now appearing for defendant; that on the day of trial plaintiff was present in person with numerous witnesses, and no one appearing for defendant, on motion of plaintiff appeal was dismissed.

On the hearing of the two motions, defendant was called and testified in substance, that he had paid but very little attention to this matter; that last April he had read in the newspaper about the appeal in this case having been dismissed and came down to the court house to see about it, and when he found it was his case went home and gave it no further attention; that he had never employed an attorney to represent him and had no intention of so doing.

An order dismissing an appeal from a justice court is a final judgment. Chambers v. Kirschoff, 57 Ill. App. 615; Smith v. Wilson, 26 Ill. 186; Fix v. Quinn, 75 Ill. 232; Hunt v. Baldwin, 27 Ill. App. 446; section 50, subparagraph 7 of the Practice Act (Ill. Rev. Stat. 1939, ch. 110, par. 174) Jones Ill. Stats. Ann. 104.050 provides as follows, “The court may in its discretion before final judgment, set aside any default, and may within thirty days after entry thereof set aside any judgment or decree upon good cause shown by affidavit, upon such terms and conditions as shall be reasonable.” This does not necessarily mean that upon the expiration of the 30 days prescribed, no final judgment might be set aside, for section 72, paragraph 196, Ill. Rev. Stat. 1939,. ch. 110; Jones Ill. Stats. Ann. 104.072 of the Practice Act further provides, “The writ of error coram nobis is hereby abolished, and all errors of fact, committed in the proceedings of any court of record, and which, by the common law, could have been corrected by said writ, may be corrected by the court in which the error was committed, upon motion in writing, made at any time within five years after the rendition of final judgment in the case, upon reasonable notice.” To be considered in connection therewith also, is the provision of chapter 77, Judgments, Decrees and Executions, paragraph 84 thereof, Ill. Rev. Stat. 1939, Jones Ill. Stats. Ann. 104.101 which provides, “Any such judgment, decree or order may hereafter be modified, set aside or vacated after the expiration of such thirty days in the same cases, to the same extent and by the same modes of proceedings as, under the law heretofore in force, it might have been modified, set aside or vacated after the expiration of the term of court at which it was rendered. ’ ’

In People v. Thon, 374 Ill. 624, the court said, “It is a fundamental rule where a final judgment has been rendered in a cause and the term has expired, the court no longer has jurisdiction to change the judgment nor to enter any further order in the cause. (People v. Drysch, 311 Ill. 342; People v. Lyle, 329 id. 418; People v. Collins, 353 id. 468.) This rule does not apply where there is any error in fact that might have been corrected at common law by a writ of error coram nobis or upon motion in writing made under section 72 of the Civil Practice act. (People v. Crooks, 326 Ill. 266.) ”

It is apparent from a consideration of these statutory provisions that the expiration of 30 days after final judgment is not the sole criterion in the determination of the question as to whether or not the court erred in setting aside the order of dismissal. Counsel for defendant maintain that the order vacating the order of dismissal and reinstating the case was properly made in accordance with the statute, being a proceeding in the nature of a writ of coram nobis properly setting forth facts which give rise to every strong inference of fraud on the part of plaintiff, as well as excusable mistake upon the part of defendant.

Such errors of fact which might be available under section 72 of the Practice Act include duress, fraud and excusable mistake. Fraud on the part of the opposing party, or his counsel that prevents one from making his defense is such an error of fact as can be availed of, on writ of error coram nobis, or under the statute aforesaid. Chapman v. North American Life Ins. Co., 292 Ill. 179; Ernst Tosetti Brewing Co. v. Koehler, 200 Ill. 369.

As this appeal must be dismissed we express no opinion of the judgment of the trial court in its ruling on the motion to reinstate and the motion to strike said motion. After further consideration of this cause we are of the opinion that the order from which appeal was attempted was not a final appealable order. The appeal, therefore, is dismissed.

Appeal dismissed.


author: Mr. Presiding Justice McSurely

text:
    People of the State of Illinois ex rel. Thomas J. Kelly et al., Appellants, v. Robert J. Dunham et al., Appellees.
    Gen. No. 40,303.

      Opinion filed January 19, 1942.
    Rehearing denied February 2, 1942.
    Michael F. Ryan, of Chicago, for appellants.
    John 0. Rees, of Chicago, for appellees; Martin G. Loeff, of Chicago, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is an appeal by plaintiffs from an adverse judgment in a mandamus proceeding.

Plaintiffs alleged that they were policemen and employees of various park districts in Chicago when, on May 1, 1934, these districts were superseded by the Chicago Park District; that they were not under civil service before that date but became members of the classified civil service of the Chicago Park District pursuant to certain provisions of the act creating the district; that after May 1, 1934, they were continued as policemen and employees, but subsequently, on various dates, were served with layoff notices; that the defendants refused to place them on any reinstatement list and refused to recognize them as members of the classified civil service of the Chicago Park District; that there were vacancies bnt defendants refused to restore plaintiffs to these positions and proposed to fill the vacancies with new employees, who were taking an original civil service examination. They asked that the defendants be ordered to restore them to their positions, and for other relief.

Defendants answering denied that plaintiffs held the positions which they claimed, before or after May 1, 1934; denied that they had made demands for reinstatement and admitted that their names had not been placed on a reinstatement list; that defendants intended to fill vacancies with persons who should successfully pass the entrance examinations; alleged that plaintiffs were guilty of laches, and that since plaintiffs were not under civil service before May 1, 1934, in the parks superseded by the Chicago Park District Act, they did not become members of the classified civil service of the Chicago Park District by operation of law.

The court heard evidence without a jury, and in its judgment found that the petitioners were not guilty of laches and that no other or further demands on respondents than shown was necessary. The court also found that the several petitioners each performed the kind of work alleged by them in their petitions and that this was performed on May 1, 1934, and for some time prior to and after that date. The court further found, however, that by reason of certain sections of the statutes, petitioners were not entitled to the mandamus sought, and their petitions were dismissed.

The particular sections which the trial court held defeated petitioners are, § 3a of the act relating to civil service in park systems (Ill. Rev. Stat. 1941, ch. 24½, par. 81 [Jones Ill. Stats. Ann. 23.084]) and § 14 of the act relating to the Chicago Park District (ch. 105, par. 333.14 [Jones Ill. Stats. Ann. 96.564]).

Before May 1,1934, when the Chicago Park District Act went into effect, there were 22 independent park districts. The employees of three of these were under civil service, but the employees of the remaining 19 were not. This action is brought on behalf of the employees of these 19 superseded districts.

The trial court construed section 14 of the Chicago Park District Act as including in the classified civil service only those employees who had a civil service status prior to May 1, 1934, the date the act became effective. The second paragraph of § 14, which it is thought supports this position, reads as follows: “Every officer or employe in the classified civil service at the time this act takes effect shall be assigned to a position having, so far as possible, duties equivalent to his former office or employment, and such officers and employes shall have the same standing, grade, and privilege which they respectively had in the districts from which they were transferred, subject, however, to existing and future civil service laws.”

Defendants argue that the words “Every . . . employe in the classified civil service at the time this act takes effect,” can mean only those employees of the three park districts who before May 1, 1934 had been under civil service, and excludes the employees of the remaining 19 park districts, who, therefore, are not entitled to be assigned to positions, as stated. Construed as an isolated provision this construction might follow, but when construed with other provisions it is clear that the legislature intended to make all who were employees of all the park districts on the date the act went into effect, whether they had been formerly under civil service or not, members of the classified civil service of the new Chicago Park District.

The first paragraph of section 14 of the Chicago Park District Act (ch. 105, par. 333.14 [Jones Ill. Stats. Ann. 96.564]) provides that the act relating to civil service in park systems shall apply to the Chicago Park District upon the coming into effect of this act. This adopted the Parks Civil Service Act into the Park District Act of May 1, 1934. Section 1 of this Civil Service Act provides that all places of employment in any park district shall be classified and filled in the manner provided for in the Civil Service Act. Hence, all park employees, by the Park District Act, on and after May 1, 1934, when it went into effect, must be under civil service.

The pivotal question, then, is as to the construction of section 3a of the Parks Civil Service Act. This is as follows: “In any park district which is now, or which hereafter may become, subject to the provisions of this act, all persons who at the time when this act takes effect or becomes applicable, hold offices or places of employment which this act provides shall be classified, shall be included under the provisions of this act and shall become members of the classified civil service of such park district, without original examination.” This act did not take effect or become applicable to the employees of the 19 park districts until it was adopted by the Park District Act of May 1,1934. Hence, this section applies to all the employees of the superseded 19 park districts who were not under civil service when the new park district was created. It was clearly the intention of the legislature that such employees should be continued in service and classified as civil service employees without taking an original examination. This interpretation is not only in accord with reason, but our Supreme Court has in effect passed upon a similar question.

The section of the Parks Civil Service Act just referred to is in effect the same as § 3 (b) of the act to regulate the civil service of the State of Illinois (ch. 241/2, par. 5 [Jones Ill. Stats. Ann. 23.005]). That act provides that all persons who, when the act shall take effect, hold places of employment, shall be classified as members of the State civil service without an original examination. In People ex rel. Baird v. Stevenson, 270 Ill. 569, Estelle Baird filed her petition for a writ of mandamus, commanding that she be restored to her position as assistant State librarian and commanding the members of the State civil service commission to place her in the classified civil service of the State; for more than a year prior to the adoption in June 1911, of the State Civil Service Act, she had been an assistant librarian, without an original examination; she was removed from employment under charges, but on hearing by the commission it was ordered that she be reinstated; the commission, however, ordered that she should take the next examination for the position of assistant State librarian; the relator did not take this examination, and she was ordered discharged for failure to do so. The Supreme Court held that the State civil service commission was not authorized to order her to take an examination, as she was already a member of the classified State civil service by reason of the express terms of the statute, which declared that those who held places of employment when the act took effect should become members of the classified State civil service without original examinations. The opinion concludes that the order of the commission that the relator should appear and take an examination, was unauthorized by law; that she had a right to disregard it, and the order for her discharge was void. The constitutionality of this act was upheld in People ex rel. Sellers v. Brady, 262 Ill. 578. We hold that the decision of the Supreme Court in the Stevenson case is decisive of the question presented.

Counsel for defendants say the Stevenson case is not in point, as there the State was in existence long before the Civil Service Act became effective and, therefore, prior employees would naturally come under the act. But in the instant case, counsel say, the park districts in which plaintiffs were employed, ceased to exist when the Chicago Park District Act became effective, and there was, therefore, no prior employment of plaintiffs in the same park district which became subject to the act. This would also be true of all past employees of all parks, for there was no Chicago Park District prior to May 1, 1934, and since there were no employees of this district prior to its creation, the statutory provision in regard to the continuance of employment of employees of the superseded parks would ■be inoperative. The point is without merit.

On May 1,1934, when the new Chicago Park District was formed, all employees of the superseded 19' park districts became subject to the provisions of section 3a of the Parks Civil Service Act. On that date these employees became members of the classified civil service of the Chicago Park District, regardless of whether they had been or had not been civil service employees before that date.

Experienced counsel for the defendants have raised many points in their brief, seeking to support the judgment of the trial court. They assert that plaintiffs were guilty of gross laches, sufficient to bar their right to relief, and that no demand was made prior to the filing of the petition. The judgment of the court specifically finds that petitioners were not guilty of laches and that sufficient demands had been made.

We have not undertaken to answer all of the points made in the defendants’ brief. We have given the affirmative reasons for our conclusion. We rest our decision upon the reasonable construction of section 3a of the Parks Civil Service Act and the decision of the Supreme Court in the Stevenson case.

For the reasons indicated the judgment of the trial court is reversed and the cause is remanded with directions to issue the writs of mandamus as prayed.

Reversed and remanded with directions.

Hatchett and O’Connor, JJ., concur.


text:
    Maywood Farms Company, Appellant, v. Milk Wagon Drivers’ Union of Chicago, Local 753 et al., Appellees.
    Gen. No. 41,706.

      Opinion filed January 19, 1942.
    William H. Sloan, of Chicago, for appellant; Murphy, Lilliander & Gemmill and William B. Gemmill, all of Chicago, of counsel.
    David A. Riskind and Abraham W. Brussell, both of Chicago, for appellees.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff appeals from an order modifying a permanent injunction which restrained the officers and members of the defendant union from carrying on a secondary boycott of plaintiff’s dairy and its store customers by means of picketing.

This cause has already been in this court, and on October 16, 1939, we filed an opinion ordering the reversal of the decree of the lower court which dismissed the complaint, and remanding it with directions to enter the restraining order sought by the plaintiff, namely, to have defendants enjoined from picketing the stores of its customers. The abstract opinion is noted in 301 Ill. App. 607. That opinion recites all of the facts involved and it is unnecessary to detail them. Plaintiff is engaged in bottling milk and dairy products and distributing them by its trucks to stores, to be resold to the customers of such stores. Plaintiff also sells to independent vendors who buy the milk at plaintiff’s plant.

The cause was redocketed in the trial court and the final decree was entered as directed.

February 13, 1941, defendants asked the trial court to vacate this final decree, or in the alternative to modify it in accordance with certain decisions of the United States Supreme Court, hereafter named. Various motions were made, and on March 4 the trial court granted the motion to modify the permanent injunction, so as to “permit peaceful picketing of the premises belonging to plaintiff and of any of the stores purchasing and selling the products of the plaintiff.”

Plaintiff, appealing from the order modifying the injunction so as to permit peaceful picketing, says it is still the law of this State that a secondary boycott is illegal and may be enjoined, to which defendants reply that the United States Supreme Court in Milk Wagon Drivers’ Union v. Meadowmoor Dairies, Inc., 312 U. S. 287, and American Federation of Labor v. Swing, 312 U. S. 321, has held that a secondary boycott is not illegal in this State. The trial court based its modification of the injunction on the opinions in these cases.

It may be conceded that the opinion of our Supreme Court in the Meadowmoor case (371 Ill. 377) seems to support the proposition that a secondary boycott is illegal. Counsel for the plaintiff analyze the decision, of the United States Supreme Court in the Meadow-moor ease and arrive at the conclusion, which seems justified, that that case does not say or indicate that a secondary boycott cannot be enjoined in Illinois.

If there were no further decisions we might be left in some doubt, but opinions in two cases by our own Supreme Court seem to remove any further doubt as to the application of the United States Supreme Court cases. The first of these is 2063 Lawrence Ave. Bldg. Corp. v. Van Heck, 377 Ill. 37, where it was said that a secondary boycott exists “where evil motive is found accompanied by unlawful acts” and that to give courts of equity jurisdiction to restrain a secondary boycott, “it must contain the element of coercion, either by threats, intimidation or violence.” In that case the court held that the evidence failed to show any threats or violence indicating a secondary boycott, and that peaceful picketing should not be restrained under the decisions of the Supreme Court of the United States.

In Ellingsen v. Milk Wagon Drivers’ Union, 377 Ill. 76, the facts were very much like those in the instant case. There the plaintiffs were the store owners and sought to enjoin the defendants from picketing their stores and interfering with their business. It was there argued that what took place amounted to a secondary boycott, which was contrary to the laws of this State. The opinion held that the decisions of the United States Supreme Court relating to the constitutional right of free speech are the law, binding on all State courts, and it followed from these decisions that the defendants in the Ellingsen case had a right, in a peaceful manner, to picket the stores of plaintiffs. The opinion said: “That the (defendants) . . . had a right to picket these stores has been unequivocally settled by the United States Supreme Court. ...” The court examined the evidence in the case and found that there were such threats and intimidations as to warrant the issuance of an injunction against such actions, but that the decree should be modified to exclude from its scope peaceful picketing.

Both counsel have ably presented their respective theories of what the law is and what it should be, but we are of the opinion that the decision of our Supreme Court in the Ellingsen case controls the case at bar. In the light of that opinion, the modification of the injunctional order by the trial court was proper, and it is affirmed.

Affirmed.

Hatchett and O’Connor, JJ., concur.


author: Mr. Presiding Justice McSurelt

text:
    Norbert M. Neipp, Appellee, v. Clarence A. Toolen, Administrator of Estate of Martin Neipp, Deceased, et al., Defendants. Appeal of Rose Neipp Plocueani et al., Appellants.
    Gen. No. 41,790.
    Opinion filed January 19, 1942.
    Rehearing denied February 2, 1942.
    Nelson, Slater & Boodell, of Chicago, for appellants ; Brennan J. Slater and Louis A. McLean, both of Chicago, of counsel.
    Joseph A. Meade, of East Chicago, Indiana, for appellee.
   Mr. Presiding Justice McSurelt

delivered the opinion of the court.

April 21, 1927, Martin Neipp and his wife, Mary, made their respective wills; the wife predeceased her husband; thereafter, November 2, 1939, he made another will; he died November 18, 1939.

Plaintiff is an adopted son of Martin and Mary Neipp. Being dissatisfied with the will of Martin Neipp, made in November 1939, he filed the present complaint in chancery asking that this will be declared null and void and that the assets of Martin Neipp’s estate be distributed in accordance with the prior will, executed April 21, 1927.

The cause was referred to a master in chancery who, after hearing evidence, reported, recommending that the prayer of the complaint be allowed. Objections to this report were filed by defendants Rose Neipp' Plocueani, Carrie Neipp Erikson and Louise Neipp, nieces of Martin Neipp, which were overruled by the chancellor, and a decree was accordingly entered, declaring the last will of Martin Neipp, executed November 2, 1939, to be null and void, and from this decree these nieces, defendants, appeal.

Plaintiff’s theory is that Martin and Mary Neipp executed their wills of April 21, 1927, pursuant to an agreement to draw irrevocable wills, and that when she died first, Martin was estopped from executing another will by reason of this agreement.

Defendants argue that the findings of the master and of the chancellor are against the weight of the evidence; that the wills of Martin and Mary Neipp, executed April 21, 1927, were not executed as a result of any agreement that they should be irrevocable; that each of the wills gives an absolute fee to the survivor, with no limitations of any nature.

Martin Neipp’s first will gives his entire estate to his wife Mary if she survives him; in the event she does not survive him it gives the entire estate to a trustee, to be held for the benefit of plaintiff, the adopted son, and to be paid to him when he attains the age of 30; in the event that the adopted son does not survive Martin Neipp the entire estate shall be divided among the five children of the testator’s brother. The will of Mary Neipp, executed on the same day, is identical in language with the will of her husband, with the exception that he is named as the first taker in case of her death. These wills make no reference to each other, nor to any agreement, and place no limitations on the survivor.

The will of Martin Neipp of November 2,1939, gave plaintiff a building valued at approximately $6,500, and to each of his two minor daughters $1,000 each, out of a personal estate of approximately $4,000. The balance of the personal estate was left to the three nieces of Martin, who are appealing.

To support the theory that the wills of April 1927, were executed pursuant to a contract that they should be irrevocable, the testimony of a number of witnesses was submitted. The principal witness was an attorney, Mr. Neumer, who testified that Martin and Mary Neipp came to his office in April 1927, and asked him, to draw their wills; that he advised them that in as much as their entire estate, real and personal, was held jointly, it would not be necessary for them to draw a will at that time; that they told him they wanted wills drawn so that after both had died their pi operty would go to plaintiff, and in case he died then everything should go to Mr. Neipp’s brother’s children, because Mrs. Neipp did not want her relatives to get any of the property; that he discussed with them the possibility of a later will by the survivor and told them that “the survivor would be in a position to sell and dispose of that property.” To his suggestion that he should put a clause in the wills 'that one was the consideration for the other, they said “No.” “Each one wanted their own will drawn without tacking in any clause in there. ’ ’

The witness refreshed his recollection of the drawing of the wills from his penciled minutes. These were introduced into evidence and contained no reference to any agreement that the wills should be irrevocable or that they were based upon the consideration of each other. There was evidence that Attorney Neumer, when questioned by Mr Dammann, guardian ad litem for the appealing defendants, and a lawyer, had stated that the Neipps would not stand for a clause in the will that one was a consideration for the other.

Other witnesses testified on behalf of the plaintiff as to conversations in 1926 or 1927 with Mrs. Neipp, who said that if she died everything would go to Mr. Neipp, and if both died the plaintiff would get the property, and in case he died Mr. Neipp’s nieces would get it. These witnesses gave no definite testimony purporting to bear on the question of whether the Neipps contracted with each other not to change their wills.

Defendants contend that there was no evidence showing the Neipps intended that their wills of April 1927, should be irrevocable; that examining the wills and the testimony of the witnesses shows that these wills! were merely individual, reciprocal wills, following similar plans of disposition of the property, as they had the same wishes with respect to this, and that they intentionally refrained from binding each other in any way about making subsequent changes in their wills.

69 Corpus Juris 1297, § 2715, defines reciprocal wills as instruments in which each testator devises and bequeathes his or her property to the other under a similar plan. Similar wills were considered in Beveridge v. Bailey, 53 S. D. 382. It was held that at their inception each testator left to the other the sole power of final disposition, saying there was no evidence of a desire on the part of either to control the final disposition of the survivor. And to the argument that the wills evidenced a disposition of the property effective after the death of the survivor, the opinion says: “We cannot establish a contract on a guess. If they wanted to bind each other to their respective wills as written, they should have indicated it in some appropriate manner.” In Klussman v. Wessling, 238 Ill. 568, the court had under consideration facts similar to those in the present case. There the husband and wife executed wills with similar provisions on the same day; the husband died first and the widow executed another will; it was contended that she had no right to revoke her first will. The court sustained her later will and dismissed the bill seeking to have it declared void. It was there argued, as here, that the wills amounted to a contract for a specific performance, according to their terms. The opinion (p. 572) says: “Courts of equity look with jealousy upon the evidence offered in support of such a contract and will weigh such evidence in the most scrupulous manner. (Sloniger v. Sloniger, 161 Ill. 270.) Such contracts ‘are only sustained when established by the clearest and strongest evidence.’ (Dicken v. McKinley, 163 Ill. 318.) ” Wilson v. Starbuck, 116 W. Va. 554, 560, 561, involved facts similar to those in the instant case. There a man and his wife on the same day executed identical wills, leaving all real estate and personal property in fee simple each to the other; the wife died first; upon the subsequent death of the husband it was contended by his wife’s heirs that his will was irrevocable and that they inherited through the devise to the wife; the heirs of the husband contended that the will was not irrevocable but merely reciprocal. It was held that the wills themselves were evidence of the fact that they were merely reciprocal, because in each will an absolute fee was given to the survivor without limitations; that the survivor was given “the full, absolute, and unquestioned ownership of the property of the first to die.”

Cases cited by the plaintiff, while involving facts somewhat similar to those before us, are sufficiently different to distinguish them as supporting authorities. In Frazier v. Patterson, 243 Ill. 80, a joint will was executed by both husband and wife; the husband dying first, the wife took considerable property under his will. It was held that the will itself showed conclusively it was made as the result of a contract that it should be irrevocable. Plaintiff cites Curry v. Cotton, 356 Ill. 538. This involved a joint will. It was held that such a will becomes irrevocable after the death of one of the makers if the survivor accepts any of the benefits made for him by such will. The opinion points out the difference between joint wills and wills made by separate instruments, their terms being reciprocal; that a will that is joint and reciprocal shows on its face by its reciprocal provisions that the bequests are made, one in consideration of the other. The opinion points out the distinction between mutual wills and joint wills and holds that in the case of mutual wills they are not generally of themselves sufficient evidence of a contract, and the proof of such a contract and the consideration to support it must be made aliunde the wills. Other cases cited by plaintiff may be likewise distinguished. We hold that the language of the instant wills indicates that they were merely reciprocal instruments and not irrevocable.

Referring to the testimony of witnesses of the plaintiff as to alleged conversations with Mr. or Mrs. Neipp, the statement made by this court in Delee v. Leahy, 278 Ill. App. 178, 181, should be borne in mind: “It has long been well settled that courts lend a very unwilling ear to statements of witnesses as to what dead people have said.” This was followed in Keshner v. Keshner, 376 Ill. 354. And in 22 C. J. 291, it is said that testimony as to the oral statements of deceased persons is therefore regarded as the weakest kind of evidence and subjected to the closest scrutiny. The evidence fails to establish that the wills of April, 1927, were drawn pursuant to any contract that they should be irrevocable.

The trial court was in error in holding that the will of Martin Neipp, dated November 2, 1939, was void. Apparently this holding was upon the theory that he was estopped from executing a new will after the death of his wife, but as we have seen, as the wills of April 1927, were not irrevocable but merely reciprocal, Martin Neipp was free to dispose of his property by will as he saw fit.

Counsel for the appealing defendants point out that the net result of the chancellor’s order is that Martin Neipp was actually limited to a life estate under his wife’s will of April 21, 1927, although the wife’s will was never probated and could not operate on the jointly held property to give Martin Neipp anything he" did not have prior' to the execution of the will. Evidently Martin Neipp and his wife had no such thought in mind. They were told that the survivor could sell or otherwise dispose of the property.

Defendants objected to the amount allowed for the master’s fees, on the ground the master failed to show the time employed on the case. It was held in Litwin v. Litwin, 375 Ill. 90, that the master, in claiming fees, must show the time he necessarily employed in the performance of his duties; that where a charge is made in a lump sum without stating the amount of time consumed, the court will disallow such charges. Defendants appealing state that the master was allowed $254.30, and that this was error.

For the reasons above stated the decree of the chancellor is reversed and the cause is remanded with directions to dismiss plaintiff’s complaint for want of equity, and also to require the master to itemize his claim for fees, in accordance with the rule stated in the Lihoin case.

Reversed and remanded with directions.

Matchett and O’Connor, JJ., concur.


author: Mr. Justice Matchett

text:
    David A. Aronson, Appellee, v. Mutual Life Insurance Company of New York, Appellant.
    Gen. No. 41,723.
    Opinion filed January 19, 1942.
    Winston, Strawn & Shaw, of Chicago, for appellant; Louis W. Dawson, of New York City, and George B. Christensen and Gerard E. Grashorn, both of Chicago, of counsel.
    David Cohl, of Chicago, for appellee; Seymour Scheffr.es, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

In a suit to recover disability benefits under an insurance policy there was trial by jury, a verdict for plaintiff for $485 with judgment thereon from which defendant appeals.

The insurance policy was delivered September 4, 1924. It was an ordinary life policy for $2,000 with a clause providing for disability benefits. This clause provided that upon due proof the insured had “become totally and permanently disabled by bodily injury or disease, so that he is, and will be, permanently, continuously and wholly prevented thereby from performing any work for compensation, gain or profit, and from following any gainful occupation,” or if he suffers named disabilities (none of which are claimed here), the company would, during the continuance of the disability, waive payment of premiums and pay to the.insured a monthly income at the rate of $10 for each $1,000 of the face amount of the policy with increasing ratio of 60 consecutive months.

Plaintiff’s claim is for $65.40 for premiums paid under protest and $30 per month,for 14 months of disability beginning December 1, 1938, and ending January 1, 1940.

■As a matter of fact, for more than five years prior to December 1,1938, defendant paid disability benefits to plaintiff because of his claim that he had been totally disabled by arthritis and a too rapid heart. On the last named date defendant discontinued payments.

Plaintiff began this suit January 9, 1940, with the result already stated. It is urged for reversal there were many errors, only one or two of which it will be necessary to consider since these are controlling.

At the close of all the evidence defendant moved for an instruction in its favor which was denied. The question of law was thus squarely raised whether plaintiff was entitled to recover, which, as we have said, is the controlling question. There is practically no conflict in the evidence.

Plaintiff is a widower fifty-two years of age; born in a foreign country; at about sixteen years of age came to this country; attended school; passed through the fourth grade; went into the sweater and knitting business ; was industrious, working from nine to ten hours a day; made rapid progress; went into the embroidery business for himself at the age of twenty-five. He did not do clerical work but operated the factory, fixing machines, making designs, etc. In 1927, he went into the dressmaking business with a corporation in which he owned 45 per cent of its stock. He was the boss; hired, fired and directed 25 to 27 girls operating sewing machines. He was consulted as to style, quantity and quality, etc., of dresses to be manufactured, and using an electric machine did the cutting himself. He repaired and purchased machines; was an officer of the corporation but never looked over the books. In 1931, his business was moved to Paducah, Kentucky. He was there about a month, leaving his family in Chicago; returned in March 1931, having sold out his interest. From March 1931, until 1937, he was in the hotel business.

His first claim for disability benefits was made in March 1931. He claimed a total and permanent disability from the month of March of that year because of arthritis. He was then, and at all times since has been, up and around. In 1933, he moved to a third floor apartment without an elevator; in 1938, to a similar building. Defendant for five years after March 1931, paid plaintiff disability benefits of $20 per month, and thereafter until December 1938, $30 per month.

Plaintiff’s physician was Dr. Chaloupka. Plaintiff consulted him in 1929, complaining of backache and pain in his legs. For a time he wore a sacro-iliac belt and took heat treatments and massage. His doctor said he grew worse in 1931. His back caused more trouble and pains developed in his shoulders, knees and elbows. The doctor says there was some rigidity in the lower spine and muscle spasm in the back. His diagnosis was chronic osteo-arthritis.

In March 1937, pláintiff with a relative invested in an apartment hotel situated at 931 Leland avenue, Chicago. Plaintiff owned a half interest. The hotel had 30 apartments; was located four or five blocks from where plaintiff resided. Plaintiff took title to the leasehold in the name of his brother-in-law, attorney, David Cohl. The bank account for the business was also carried in Gobi’s name. Neither plaintiff nor Cohl drew a salary as they expected to receive their remuneration out of the profits.

About June 1938, defendant found out plaintiff had taken out a union card in the Janitors’ Union under the name of “A. Aronson.” Plaintiff was questioned about this, and in June defendant sent him to Dr. Walter S. Priest, a heart specialist; in November, to Dr. Edward W. Byerson, an orthopedic surgeon. These physicians reported plaintiff was not disabled. Dr. Byerson’s opinion was plaintiff had chronic osteoarthritis of the spine and was not capable of performing work requiring physical labor but was able to perform clerical or supervisory work of almost any kind.

Since 1937, plaintiff has lived in two third-floor apartments without elevators, some distance from his place of business. He has been up and around at all times; rides on street cars and elevated trains; goes about the city and to doctors’ offices in the Loop and other places; walks to and from the apartment hotel, some five or six blocks from his home. He is accustomed to arise about 6 o’clock in the morning. Each day he walks to a synagogue some two and one-half or three blocks from his residence; returns to his home; prepares and eats breakfast, and between 9 and 10 o’clock goes to the apartment hotel. Late in the afternoon each day, regardless of weather, plaintiff again goes to the synagogue. He testifies that when he first went into the apartment hotel business he did not go to the hotel regularly but did so after about six months. He arrives there about 9 o ’clock in the morning; stays all day, sometimes for the evening; dresses in a regular business suit at times, at other times wears overalls. The hotel has no elevator. Plaintiff carries on his activities from the basement to the third floor. He does not have any resting place in the hotel building. He has a power of attorney for Cohl and a bank account on which he is authorized to sign and draw checks. He walks to the Uptown State Bank on occasions and makes deposits there. Sometimes he is alone in the hotel office but claims he does not take care of the office. A tenant testifies that at times plaintiff collects the rents although this work is usually done by the housekeeper. A housekeeper and a janitor are employed in the hotel business. Plaintiff meets tradesmen, orders supplies such as soaps, paints, varnishes, hardware, etc., accepts deliveries of articles of merchandise, signs delivery tickets, supervises painting and decorating the building, assists in patching holes in the plaster and in doing so has carried plaster about on a piece of board and applied it to the wall with a trowel. He shellacked places in the woodwork and plaster; mixed up paint and painted the bottom part of one bathroom, a job that took him over an hour; washed walls as high as he could reach and delivered furniture about'the apartment; carried paint buckets around; collected rents and gave receipts; repairs faucets; counts linens; operates a machine for stamping the hotel linen.

Dr. Chaloupka testifies the condition of plaintiff became worse in 1931, pains developing in the shoulders and knees, all the way up the hack and in the elbows ; that it was difficult for plaintiff to get around. His treatment consisted of a back support for a short time, light and heat treatments, massage and extraction of all plaintiff’s teeth. Nevertheless, he says, plaintiff grew steadily worse. Dr. Chaloupka said there was no fixation of the spinal column except for muscle rigidity; that plaintiff had arthritis in his knees although there was no crepitus in moving the knee. He says that although in his opinion plaintiff has arthritis in his shoulders and elbows the X-rays do not reveal it. He says plaintiff is able to move bis hands and handle objects, to dress and undress perfectly, and get around the streets; that he could work an hour or so but no longer; that he does not believe plaintiff could engage in any occupation where he would have to work for five or six hours a day, because of his backache. He does not think plaintiff could walk all day but that he can walk for an hour or two at a time.

Dr. Greenspahn, an expert for the plaintiff, examined him in October 1931; took X-rays which were not produced. He was permitted over objection to testify to a physical and X-ray examination made just prior to the beginning of the trial November 18, 1940, which was nearly two years after the commencement of the suit and over 11 months after the close of the period involved in the suit. This doctor says that the tops of the hip bones were lined up in a straight position; that there was some kyphosis or backward curvature of the spine and tightening of the back muscles, crepitus in the right shoulder and in the knees; that there were arthritic deposits in the lower lumbar vertebrae and some roughing of the vertebra; that there was a slight sideward curvature of the spine; that the muscles outside of the spastic areas are a little flabby.

The expert physicians for defendant examined plaintiff at intervals from the year 1932 onward. They testify their examinations showed a man who had a rapid heart and was emotionally and nervously upset. There was evidence of an acute arthritis with foci of infection which might cause it. These ailments gradually diminished with the removal of the teeth, clearing up of the tonsils, etc. The weight became stable, and there were less complaints of pain. Plaintiff now weighs 136.

The provision as to disability in this contract is not unusual and it has often been construed by the courts. The provision is distinctly different from that contained in some policies, which promise to insure against disability which prevents the insured from engaging in his usual occupation. This distinction was pointed out in Buffo v. Metropolitan Life Ins. Co., 277 Ill. App. 366. This court said: “.It appears that there are two general types of contracts of insurance of this nature, one of which provides for indemnity if the insured is disabled or prevented from engaging in any occupation and performing any work for compensation or profit, which policy is commonly known and designated as a total disability policy. The other kind provides for indemnity if the insured is disabled from transacting duties pertaining to the' particular occupation in which the insured is then engaged. These are ordinarily styled occupational disability policies. It is generally recognized that there is a fundamental difference between these two classes of insurance and the risk that is assumed therein by the insurer. It therefore becomes necessary to revert to the provisions of the policy in question to determine which class the same comes under.”

This case followed Sibley v. Travelers’ Ins. Co. of Hartford, Conn., 275 Ill. App. 323, where insurance contracts to pay indemnity for disability were likewise classified and it was held proof of disability to follow the usual occupation of the insured would not alone justify a recovery. The Sibley case reviews the authorities. It is held in practically all of them that an insurance contract of this kind is construed liberally in favor of the insured, but that the court has no right to make a new contract for the parties. If there are terms of doubtful meaning or ambiguities, the doubt must be resolved in favor of the insured, but as the Supreme Court of the United States said in Bergholm v. Peoria Life Ins. Co., 284 U. S. 489, this canon of construction “furnishes no warrant for avoiding hard consequences by importing into a contract an ambigúity which otherwise would not exist, or under the guise of construction, by forcing from plain words unusual and unnatural meanings.”

Other cases holding similar to the Buffo case are Steffan v. Bankers Life Co. of Iowa, 267 Ill. App. 248; Wyckoff v. Metropolitan Life Ins. Co., 302 Ill. App. 241; Russell v. New York Life Ins. Co., 305 Ill. App. 619 (Abst.).

Plaintiff cites Victor v. Prudential Ins. Co. of America, 284 Ill. App. 90; Missouri State Life Ins. Co. v. Copas, 265 Ill. App. 478; Johnson v. Mutual Trust Life Ins. Co., 269 Ill. App. 471; Wood v. Prudential Ins. Co. of America, 271 Ill. App. 103; and Grand Lodge Brotherhood of Locomotive Firemen v. Orrell, 206 Ill. 208.

The Victor case was one where the total disability, as the evidence indicated, arose from incipient tuberculosis, heart disease, bronchitis, dementia praecox, deficient circulation, a deficient nervous condition and several other diseases. Trial was by jury and this court refused to disturb the verdict.

In the Copas case it was argued that a total disability clause, as here, should be construed to mean that plaintiff must be totally and permanently incapacitated for any purpose, and the court held this was not true. The opinion cites Taylor v. Southern States Life Ins. Co., 106 S. C. 356, 91 S. E. 326, L. R. A. 1917C 910, to the contrary.

In the Wood case the disability resulted from disease of the heart and lungs. The court said not total disability but inability to labor at any gainful occupation was the test.

In Johnson v. Mutual Trust Life Ins. Co., the disability was caused by pulmonary tuberculosis, and the court held it was not necessary to prove that the plaintiff would be disabled for the entire remainder of his life.

All the circumstances of a case of this kind must be considered. Plaintiff here is not illiterate. He is not a man whose livelihood is lost by mere inability to perform manual labor. He possesses business and managerial experience. Mere inability to work with his hands could not, we think, be held to amount to total disability within the meaning of this policy. There has been no proof that his bodily infirmity is such as to entirely prevent him laboring with his hands, but even if there was such proof, this would be far from showing that he was unable to work at any gainful occupation. This it seems on principle ought to be the test. The fact that plaintiff took out a janitor’s card under an assumed name is significant. He has his daily routine' about his work and is able to perform it. Without a distortion of the language used in the policy it cannot be said that he is totally and permanently disabled by bodily injury or disease. The language of this disability clause is interesting and significant in the light of - the facts here disclosed. The disability insured against is as to its cause such as may arise either from bodily injury or bodily disease. The insured must be disabled ‘ ‘ totally and permanently,” must be continuously and wholly prevented thereby from performing any work either for compensation, for gain or for profit, and from following any gainful occupation. Plaintiff appears from the evidence to be the successful manager of an apartment hotel of which he is part owner and which the evidence indicates is operated for profit. If words can be made to express ideas with any certainty it would appear this plaintiff is not “disabled” within the meaning of the disability clause of this policy. The instruction requested at the close of all the evidence should have been given. We hold as a matter of law plaintiff is not entitled to recover. The judgment will be reversed.

Reversed,

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