author: Mr. Presiding Justice Friend

text:
    First National Bank of Chicago, Trustee Under the Last Will and Testament of John F. Taylor, Deceased, Appellee and Cross Appellant, v. Cleveland Trust Company, Executor of and Trustee Under the Last Will and Testament of Lillian Prall Ludlow, Deceased, Appellant and Cross Ap-pellee. Cleveland Trust Company, Trustee, et al., Appellees.
    Gen. No. 40,572.

      Opinion filed February 28, 1941.
    Tolles, Hogsett & Ginn and Jones, Day, Cookley & Reavis, both of Cleveland, and Peabody, Westbrook, Watson & Stephenson, of Chicago, for appellant; George D. Bonebrake and Robert W. Stevens, both of Cleveland, and Charles H. Watson and David C. Goodlett, both of Chicago, of counsel.

      Bernhard Stenge, of Chicago, for coappellants; Milton L. Kohn, of Chicago, of counsel.
    Litsinger, Healy, Reid & Bye, of Chicago, for certain appellee and cross appellant; Elbridge W. Rice, of Chicago, of counsel.
    Pam, Hurd & Reichmann, of Chicago, and Squire, Sanders & Dempsey, of Cleveland, for certain other appellees; John W. Barkley, of Cleveland, and Fredric H. Stafford and George W. K. Snyder, both of Chicago, of counsel.
    Julius A. Polikoff, of Chicago, for certain other appellees.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

The Cleveland Trust Company, as executor of and trustee under the last will and testament of Lillian Prall Ludlow, deceased, appeals from a decree of the circuit court construing certain portions of the wills of John F. Taylor and Jennie B. Taylor, adverse to its contentions concerning vested interests in the principal of the trust under the will of John F. Taylor and appointment under the will of Jennie B. Taylor, and the right to income and payment of deficiencies thereunder. Plaintiff, First National Bank of Chicago, sole surviving trustee under John F. Taylor’s will, which sought construction of the two wills in question, contends that the decree should be affirmed in all respects except the parts thereof directing payment to the Cleveland Trust Company on account of deficiencies in monthly payments to Lillian S. Ludlow, and directing payment of attorneys’ fees to the Cleveland Trust Company; and as to these provisions of the decree they have perfected a cross appeal. Bernhard Stenge, guardian ad litem for the two minor children of Harold B. Burdick, has perfected a separate appeal, contending that the interest of these minors in the construction of the will is substantially the same as the Ludlow estate with respect to the continuation of income payments, but he takes a position opposed to that of the Ludlow estate with respect to vesting of interests in the principal of the trust. The various other parties to the proceeding have disclosed their respective interests by appropriate pleadings, and, through separate briefs, are contending for substantially the same construction of these wills as the plaintiff trustee and for affirmance of the decree.

From the undisputed facts of record it appears that J ohn F. Taylor, a resident of Chicago, died December 26, 1928, leaving a will dated Jun 17, 1926, which had been duly admitted to probate. He named his wife, Jennie B. Taylor, and plaintiff’s predecessor, First Trust & Savings Bank, as executors and trustees under the will. His wife survived him, but died 10 days later, January 5, 1929. There were no children of their marriage. The First Trust & Savings Bank was discharged as executor, but continued to act as trustee under the will until plaintiff succeeded thereto; since then plaintiff has been and is the sole surviving trustee. The trust estate consisted of cash, in the approximate sum of $46,000, and securities having a total par value of $330,000.

John F. Taylor, by his will made specified gifts to his wife, Jennie B. Taylor, of personal effects, he gave $1,000 to a former employee, Frank St. Thomas, and bequeathed all the rest and residue of his estate to his wife and plaintiff’s predecessor in trust. It is the trust section of the will, Article IV, that contains the principal disputed provisions. Section (a) of Article IV provides that any income from the trust was to be paid to his wife during her life. Section (b) provides that upon the death of his wife, in the event that she survived him, payments of $2,000 were to be made to nine named children of testator’s brother, William E. Taylor, “who are living at the time when such payments are made.” Section (c) of Article IV, which is one of the principal items in dispute, provides that after payment of the $2,000 bequests previously specified, all the rest and residue- of the estate is to be held by the trustee, “as long as any one of the following named six persons shall continue to live and as long as Carrie Belle Prall, wife of Ralph T. Prall, lives, and as long as she remains unmarried, provided she survives the said Ralph T. Prall as his widow, to-wit: (1) My nephew, Ralph T. Prall, now residing in Youngstown, Ohio; (2) my niece, Lillian S. Ludlow, wife of Arthur C. Ludlow, now residing in Cleveland, Ohio; (3) my nephew, John Prall, the brother of .said Lillian S. Ludlow; (4) Ellen R. Bennett, now residing at Number 2791 Scarborough Road, Cleveland Heights, Ohio; (5) Mary B. Burdick, now residing at 2791 Scarborough Road, Cleveland Heights, Ohio; and (6) Harold B. Burdick, the son of said Mary B. Burdick, now residing on Grandview Avenue, Cleveland, Ohio.” This section of the will provides that such trust shall terminate “upon the death of the last survivor of said six persons,” and of said Carrie Belle Prall, or upon her remarriage, provided she survives Ralph T. Prall as his widow, and that “during the continuance of such trust, my said trustee . . . shall pay from the net income thereof . . . monthly, the following respective sums to the following respective persons: To Ralph T. Prall, $250; to Lillian R. Ludlow, $150; to John Prall, $100; to Ellen R. Bernnett, $150; to Mary B. Burdick, $100; to Ear old B. Burdick, $100.”

Section (d) of Article IV of the will makes disposition of any surplus income as follows: “If there shall be any income remaining out of said trust estate after the payments hereinbefore provided for shall have been made, then such remaining income shall be paid over and distributed in semi-annual installments to such person, or persons, corporations, institutions, .or societies as my said wife may by her Last Will and Testament name and appoint to receive the same.”

Section (d), the last paragraph of Article IV of the will, provides for the distribution of the trust upon termination, and is the remaining principal item in dispute. It follows: “Upon the termination of this trust, as hereinbefore stated, my said Trustee, First Trust & Savings Bank, shall forthwith assign, transfer, convey and set over all of the property and estate, principal and income, then held by it under the provisions of this my last will, to such person, or persons, corporations, institutions, or societies as my said wife in her Last Will and Testament may name and appoint to receive the same.”

Jennie B. Taylor died January 5, 1929. Her will, dated January 1, 1929, was likewise duly admitted to probate in Cook county, Illinois. Exercising the power of appointment given her in Article IV (d) of her husband’s will, with respect to surplus income, she named Ellen R. Bennett, Mary B. Burdick and Harold B. Burdick to receive any such income from her husband’s trust estate in equal shares. In the event of the death of any of these three persons prior to the termination of her husband’s trust estate, her will provided that his or her share of such excess income should go to the six persons named or the survivors thereof.

She also exercised the power of appointment given her in section (d) of Article IV of her.husband’s will, with respect to the distribution of the.trust upon termination, Article V of her will providing that one third thereof should go to the heirs at law of William E. Taylor, brother of John F. Taylor; one third to the heirs at law of Sarah J., Prall, John F. Taylor’s sister; and one third to her own heirs at law, to be determined in accordance with the laws of descent in this State.

The heirs at law and next of kin of John F. Taylor at the time of his death were his widow, Jennie B. Taylor, his brother, William E. Taylor, and the children of his previously deceased sister, Sarah J. Prall, Ralph T. Prall, Lillian P. Ludlow, and John Prall. All these persons are living, except Jennie B. Taylor, Lillian P. Ludlow and William E. Taylor.

The next of kin and heirs at law of J ennie B. Taylor, under the statutes of descent of Illinois at the time of her death, were Ellen R. Bennett, a sister, and Harold B. Burdick, a nephew.

Sarah J. Prall was the sister of John F. Taylor, and predeceased both him and Jennie B. Taylor, having died September 10,1922. Her heirs at law at the time of her death, and at the time of the death of John F. Taylor and Jennie B. Taylor, were her children, Ralph T. Prall, John Prall and Lillian P. Ludlow.

Lillian P. Ludlow, who was also known as Lillian S. Ludlow, died July 1, 1935, having been named one of the beneficiaries of the income of the trust estate in section (c) of Article IV of the will of John F. Taylor, and was one of the three heirs at law of Sarah J. Prall, who were named by Jennie B. Taylor to receive one third of the trust upon termination. Her surviving next of kin and heirs at law are her brothers, Ralph T. Prall, and John Prall. She died testate, leaving a will which was duly admitted to probate in Cuyahoga county, Ohio. The Cleveland Trust Company was named and is the duly qualified and acting executor under the will of Lillian P. Ludlow, which provided for the payment of debts and expenses, made bequests of specific articles of personal property, and devised and bequeathed all the residue of her estate to the Cleveland Trust Company in trust, naming as beneficiaries of the trust Ralph T. Prall, Edgar A. Prall, John T. Prall, Theresa Ludlow, A. Irving Lud-l'ow and Leonora Smith, to whom specific annuities out of income for their respective lives were granted, and Allen Memorial Hospital, Oberlin, Ohio; Flora Stone Mather College, Cleveland, Ohio; St. Luke’s Hospital, Cleveland, Ohio; and Young Women’s Christian Association, Cleveland, Ohio, to whom the remainder of the trust was granted.

William E. Taylor died, intestate March 27, 1932, leaving surviving him as his heirs at law a widow and nine children, all of whom are still living except his widow, Mary Louise Taylor, who died testate May 1, 1932, devising her estate to the children.

Mary B. Burdick, sister of Jennie B. Taylor, died testate January 4, 1929, one day before the death of Jennie B. Taylor, and 9 days after the death of John P. Taylor. Her next of kin and only heirs at law were her husband, Halbert J. Burdick, to whom she bequeathed her entire estate, and her son, Harold B. Burdick. At the time of the death of Mary B. Burdick no distribution of the income of the corpus of the trust had been made.

Halbert J. Burdick, sole beneficiary under his wife’s will, died testate January 15, 1938, leaving surviving him as his next of kin and only heir at law his son, Harold B. Burdick. By the terms of his will he bequeathed certain personal property to his son, Harold B. Burdick, and all the rest and residue of his property to the Cleveland Trust Company, to be held and managed by it under the terms of a trust agreement between him and the Cleveland Trust Company, dated February 26, 1930.

The Cleveland Trust Company, named as executor in Halbert J. Burdick’s will, declined to act as such, and Harold B. Burdick, on February 2, 1938, applied to and was appointed by the probate court of Cuya-hoga county, Ohio, and is the duly qualified and acting-administrator with the will annexed of the estate of Halbert J. Burdick, deceased. The trust agreement provided that, subject to the rights reserved to Hal-bert J. Burdick during his life, the net income shall be paid to Harold B. Burdick during his life, and that when he shall attain the age of forty-five years, the trustee shall distribute to him the trust estate which shall thereupon cease and determine, with the right, however, that the trustee may anticipate or postpone said distribution in whole or in part. In the event of Harold B. Burdick’s death before final distribution, the estate is to go to his issue. He has two minor children, John Kirk Burdick and Ellen Ann Burdick, for whom Bernhard Stenge is acting as guardian ad litem.

The Cleveland Trust Company, as executor and trustee under the will of Lillian P. Ludlow, filed its answer admitting the facts hereinbefore set forth, the necessity of construing the wills, and it submits that the proper ' construction thereof is substantially as follows: (1) under an appointment by Jennie B. Taylor of “the heirs of law” of Mrs. Sarah J. Prall, to receive one third of the trust estate created in the will .of John F. Taylor, upon the termination thereof, an interest in one third of the trust estate as it shall exist at the time of its termination, i. e., upon the death of the last survivor of the six named income beneficiaries* immediately vested at the time of the death of Jennie B. Taylor in those persons who were then the heirs of Sarah J. Prall, of whom Lillian P. Ludlow was one of three, Sarah J. Prall having predeceased the testatrix; (2) under the provisions of the will of John F. Taylor, directing the trustee to pay specified monthly sums to six named beneficiaries “during the continuance of the trust” — the trust to terminate upon the death of the last survivor of the six beneficiaries,— there passed to the personal representative of such deceased beneficiary, of whom Lillian P. Ludlow was one, the specified monthly payments during the continuance of the trust; and (3) before any excess income of the John F. Taylor trust should be distributed under the power of appointment given to and exercised by Jennie B. Taylor, any such excess income should be used, first, in payment of or to apply upon prior or any subsequent deficiencies in the monthly payments to beneficiaries.

The principal controversy arises over the meaning and construction to be given to the word “heirs” in Article V of Jennie B. Taylor’s will. Briefly set forth, the Cleveland Trust Company contends that under the appointment by Jennie B. Taylor of “the heirs at law of Mrs. Sarah J. Prall,” to receive one third of the trust created in the will of John F. Taylor upon termination thereof, an interest in one third of the trust estate as it shall exist at the time of its termination immediately vested, at the death of Jennie B. Taylor, in those persons, including Lillian P. Ludlow, who were then the heirs of Sarah J. Prall. Plaintiff, and in general the other parties in interest, are opposed to this construction. They contend, and the decree held, that it was .the true intention of John F. Taylor that the principal of the trust estate should not vest until its termination and final distribution thereof, and “at such time it will be the duty of the trustee to convey said estate as follows: one-third to the then living-heirs of William E. Taylor; one-third to the then living heirs of Sarah J. Prall; and one-third to the then living heirs of Jennie B. Taylor,” and that no future interest in the estate has vested in Lillian P. Ludlow or in any of the heirs of William E. Taylor, Sarah J. Prall or Jennie E. Taylor.

The reasoning whereby the Cleveland Trust Company reaches the conclusion that Lillian P. Ludlow had a vested interest is as follows: (1) John F. Taylor by Article IV (d) of his will directed the trustee upon the termination of the trust to transfer the trust estate to those appointed by Jennie B. Taylor by her last will; (2) Jennie B. Taylor, by Article V of her will, appointed, among others, the heirs of Mrs. Sarah J. Prall, sister of John F. Taylor, to receive one third of the trust estate; (3) the word “heirs” signifies those who, at the death of the ancestor, are entitled to his property under the law of intestate succession; (4) Tinian P. Ludlow was one of the heirs of Mrs. Sarah J. Prall, the heirship being determined as of the death of the ancestor, Mrs. Sarah J. Prall, with reference to the death of Jennie B. Taylor; the law favors vesting of estates. From these successive circumstances it is then argued that upon the death of Jennie B. Taylor, Lillian P. Ludlow became possessed of a vested interest, which, upon her death, passed to her legal representative, the Cleveland Trust Company.

In support of its contention that Lillian P. Ludlow had a vested interest, counsel rely upon the general rule that “heirs” of any deceased person means, in its primary and natural sense, those who at the death of such person are entitled to his property under the law of intestate succession. They say that the question of the time for ascertaining the heirs of a person most frequently arises where a testator grants a life estate, either equitable or legal, to a certain person or persons, and grants the remainder to his own heirs, and that in such case it is uniformly held that in the absence of a contrary intention clearly manifested in the will the heirs of the testator are determined at the death of the deceased, and that the interest of any beneficiary dying before the termination of the preceding estate is vested in interest, though not in possession and enjoyment, and passes on his death to his legal representative, heirs or grantees. Various decisions and text writers are cited as supporting this rule, including Kellett v. Shepard, 139 Ill. 433; Himmel v. Eimmel, 294 Ill. 557; Clark v. Shawen, 190 Ill. 47; People v. Camp, 286 Ill. 511; Scofield v. Olcott, 120 Ill. 362; Kales, Estates, Future Interests, etc., sec. 571. These cases for the most part involve wills where no power to appoint was conferred, and where the testator, after bequeathing or devising an estate for life, bequeathes or devises the remainder to his own heirs. In such circumstances, the persons embraced in the class of testator’s heirs are determined as of his death. The leading case of Kellett v. Shepard, 139 Ill. 433, illustrates that rule. The rules laid down in these cases, however, are not positive rules of law nor means of discovering the intention of a testator, but are merely applied as tests of that intention (69 Corpus Juris 597), and are therefore subordinate to the paramount rule of construction which all the parties concede to be of controlling importance, namely, that the intention of the testator is to be ascertained from a consideration of the language of the entire will, in the light of the testator’s surroundings and circumstances and the state and condition of his family and property at the time the will was executed. (Rettig v. Zander, 364 Ill. 112; Wells v. Dalies, 318 Ill. 301; Himmel v. Himmel, 294 Ill. 557; Knight v. Knight, 367 Ill. 646.) It would be impossible, within the reasonable limitations of this opinion, to discuss and analyze all the cases cited and relied upon by the respective parties; nor do we consider it necessary, because, as was said in Love v. Engelke, 368 Ill. 342, “it is generally recognized that by reason of the variety of language used in wills, decisions construing them, while frequently helpful, are not controlling, and are less helpful as guides than are the cases upon other subjects.” It is sufficient to observe that no case cited by the Cleveland Trust Company involves a factual situation similar to that in the instant case, and therefore we are impelled to be guided by the context of the wills, considered in the light of the surrounding circumstances of the Taylors, rather than by strict, technical definitions or rules, in determining the intention of the testators.

In considering the principal controversy involved, namely, whether Lillian P. Ludlow was appointed to receive any part of the remainder of the trust estate, two primary inquiries arise: (1) whether the will of John F. Taylor, construed in the light of his surroundings and circumstances, empowered Jennie B. Taylor to appoint Lillian P. Ludlow, who necessarily would be dead at the time of the distribution of the property then in the possession of the trustee; and (2) whether Jennie B. Taylor intended to appoint Lillian P. Ludlow. The answer to these questions necessitates an inquiry into the general plan of the will of John F. Taylor, the state and condition of his family, and significant portions of his will, including the so-called spendthrift provision contained in Article VI, and a like inquiry into the general plan of the will of Jennie B. Taylor, the state of her family and significant portions of her will.

The plan of the John F. Taylor will was to provide adequately for his wife, to whom he bequeathed the entire income from the trust property for her life, with the right to encroach on the principal, so that she might be adequately cared for. The testator then directed that after the death of his wife the trustee pay out of the trust $2,000 to each of nine named sons and daughters of William E. Taylor, his brother, “who are living at the time such payments are due.” He then directed that out of the income from the property remaining in the possession of the trustee, specific amounts be paid monthly to the sons and one daughter, who were named, of his sister, Mrs. Sarah J. Prall, and further specific sums to be paid monthly to his wife’s two sisters, Ellen B. Bennett and Mary B. Bur-dick, and to his wife’s nephew, Harold B. Burdick. The testator then directed that if there was any remaining income from the trust property it was to be paid and distributed semiannually to appointees made by his wife in her last will, and in default of appointment to his heirs. He directed that the trust was to continue until the death of the last survivor of the sons and daughters of his sister, Sarah J. Prall, the wife of one of these sons, and the two sisters and nephew of his.wife, and finally, he directed that upon the termination of the trust, the trustee was to transfer the property to appointees named by Jennie B. Taylor in her last will. In Article VI, the so-called spendthrift clause, he directed the payments to all the beneficiaries of his estate be made to such beneficiaries in person, and that no beneficiary of the trust shall have any right or power to sell, assign, incumber, charge or dispose of any right, title, interest or share in the trust estate or any property or income thereof prior to the payment or distribution and actual receipt-thereof, and that no interest of any beneficiary be liable for such beneficiary’s debts. Except for a legacy of $1,000 and the gifts out of the trust property of $2,000 each to the children of his brother, William E. Taylor, he made no disposition of his estate beyond the termination of the trust. However, he specified definitely the time for the termination of the trust and for the distribution of the trust property. Except in the one instance where, in Article V (d) the will directed that if Ralph T. Prall dies before Carrie Belle Prall, his wife, the $250 monthly payments payable to him in his lifetime shall be paid to Carrie Belle Prall, so long* as she lives and remains unmarried, there is no provision for successorship upon the death of a beneficiary. It is therefore evident that while he intended to make complete disposition of his entire estate, it was his plan only to dispose of income to his wife for life, to dispose of only a comparatively small part of the principal to the sons and daughters of his brother, to dispose of most of the income. after the death of his wife to the two sons and daughter of his sister and the wife of one of said sons after the death of that son, and to the two sisters and nephew of his wife, during the lives of these seven persons; to leave any income remaining from the trust property to persons to be appointed by his wife in her will, and to leave the corpus after the termination of the trust to appointees named by his wife in her will. All this was obviously planned upon the assumption that his wife, Jennie B. Taylor, would survive him.-

When John F. Taylor made his will June 17, 1926, approximately two and one-half years prior to his death, he had a wife, Jennie B. Taylor, and no children ; a brother, William E. Taylor, who had nine children ; two nephews, Ralph T. Prall and John Prall, and one niece, Lillian P. Ludlow, who were sons and a daughter of his deceased sister, Sarah J. Prall. His wife, Jennie B. Taylor, had two sisters, Ellen R. Bennett and Mary B. Burdick, and one nephew, Harold B. Burdick.

It is significant that all beneficiaries of the will of John F. Taylor are mentioned by name, except those who by Article IV (d) would take the remaining income in default of appointment by Jennie B. Taylor and except those who were to be appointed to the corpus by Jennie B. Taylor. There is no express provision that in case of the death of a named beneficiary the interest bequeathed shall pass to a second or alternate taker, except in one instance. There are, however, several expressions indicating that it was the intention of John F. Taylor that only named and living beneficiaries shall take. In Article III, a legacy of $1,000 is bequeathed to Frank St. Thomas, “providing he is living at the time of my death. ’ ’ He made no provision for succession in the event of the death of his legatee. In Article IV (a) the trustee is directed to pay the net income of the trust estate to Jennie B. Taylor during her lifetime. Article IV (b) provides for payment of $2,000 to each of nine children of William E. Taylor who are living at the time when such payments are due. There is no provision for succession upon the death of any son or daughter of William E. Taylor. In Article IV (c) the trustee is directed to pay from the net income of the property, monthly, “the following respective sums to the following respective persons.” Here again there is no provision for succession, except as heretofore noted in Article IV (d), with respect to the monthly payments provided for Balph T. Prall. In Article IV (d), the trustee is directed to transfer all the property, principal and income, then held by it to persons appointed by Jennie B. Taylor. All the property, principal and income, is disposed of as a single and distinct entity, and there is no suggestion of succession upon death nor is there any gift over in default of appointment, except as to the “remaining income” it. is provided that in default of appointment it is to be paid to testator’s heirs. Article VI provides that “payments to all the beneficiaries of my estate be made to such beneficiaries in person. . . . ” Nowhere in John P. Taylor’s will do any words, such as “successors,” “assigns,” “heirs,” “legatees,” “legal representatives,” or any expression suggesting succession, occur.

The plan of Jennie B. Taylor’s will was to provide a general legacy to Frank St. Thomas, to dispose of the residue of her own estate, one third to her sister, Ellen B. Bennett, one third to her sister, Mary B. Burdick, and one third to her nephew, Harold B. Burdick, each of these residuary legatees being* mentioned by name; to exercise the power to appoint “the remaining income,” which she did by appointing her sisters and her nephew, providing for succession in case of the death of any of these three appointees; and to exercise the power to appoint the trust .property at the termination of the trust, which she did by appointing the heirs of William E. Taylor, her husband’s brother, to one third; the heirs of Sarah J. Prall, her husband’s sister, to one third; and her own heirs, to the remaining one third, but she made no provision for succession.

Although Jennie B. Taylor resided in Illinois, her will was executed in California 6 days after her husband’s death, and she died 4 days later. January 1, 1929, when the will was executed she had two sisters, Ellen B. Bennett and Mary B. Burdick, and one nephew, Harold B. Burdick, son of Mary B. Burdick. She had no children. Ellen B. Bennett survived her, but Mary B. Burdick predeceased her by one day. William E. Taylor, her husband’s brother, was living, but Sarah J. Prall, her husband’s sister, had been dead for about 6 years. . Ralph T. Prall, John Prall and Lillian P. Ludlow, sons and daughter of Sarah J. Prall, were living.

We revert to the first inquiry, whether the will of John F. Taylor, construed in the light of his surroundings and circumstances, empowered his wife to appoint Lillian P. Ludlow, who necessarily would be dead at the time of the distribution of the property then in the possession of the trustee. It is apparent from the various provisions of the will hereinbefore set forth that it was John F. Taylor’s intention that only living beneficiaries should take thereunder. If he had intended that succession should occur upon the death of any beneficiary of his will, he would have expressly provided for it as he did in the case of Ralph T. Prall. Having provided for succession in the one case and in no other an inference arises that he did not intend that others should succeed to the interests of any deceased beneficiary. (Alderman v. Dystrup, 293 Ill. 504.) Upon the theory advanced by the Cleveland Trust Company, that the heirs of William E. Taylor, Sarah J. Prall and Jennie B. Taylor, should be determined as of the date of the death of the latter, and thereby create a vested interest in the property in the possession of the trustee at the time of the termination of the trust, which, upon the death of any heir, is transmitted to the legal representative of such deceased heir, it would logically follow that during the lifetime of such heir he should be able to assign his interest. But this is contrary to the express provisions of Article VI, which prohibits-the assignment by any beneficiary of the trust of “any property or income thereof.” Furthermore, payment to a deceased beneficiary, whether named in the will of John F. Taylor or appointed by Jennie B. Taylor, cannot be made in person. The existence of the recipient of the fund is necessary to compliance with this requirement. It was so held in Routt v. Newman, 253 Ill. 185.

As an indication that John F. Taylor intended to confer upon his wife a mere power to appoint persons in being to receive the property in the possession of the trustee at the termination of the trust, and that he did not intend to authorize her to appoint to deceased persons or to persons who necessarily would be dead at the time fixed for distribution in his will, it is pointed out that the power he gave his wife was not without limit; she was not authorized generally to dispose of the trust property, but could merely appoint, and could not appoint except by her will; she was not authorized to create a new trust and beneficiaries thereof to be appointed by her, nor to delegate the power of appointment. All she could do was to name “such person or persons, corporations, institutions or societies,” to whom the trustee should, at the time fixed by Taylor, transfer the property then in the possession of the trustee. It would be a strained construction to hold that the scope of the words employed was intended to include deceased persons. It was held in Northern Trust Co. v. Porter, 368 Ill. 256, that where a donor of a power confers a power to appoint only by will, the donee cannot appoint himself, because he will be dead when the appointment becomes effective, and we think that upon the same principle the donee of a power cannot appoint other persons who are or necessarily will be dead when the appointment becomes effective. It would be incongruous to hold that Taylor had any such intention, and his direction to the trustee to pay over to the appointees named by the donee is not compatible with appointment to deceased persons.

Plaintiff’s and other counsel stress the importance of Article VI, the spendthrift clause, as conclusively indicating that vesting must be postponed until distri-button. As heretofore pointed out, the language of this article directs that payments be made to all beneficiaries in person or upon their personal receipt, and it prohibits the assignment or other anticipatory disposition of any interest in the principal by any beneficiary prior to distribution. It is indeed difficult to conceive that if this article of the will is to be taken into consideration and given effect how any conclusion harmonious with the vesting prior to distribution could fairly be reached. The Cleveland Trust Company takes the position, however, that the provisions of Article VI do not carry over to persons appointed by Jennie B. Taylor to take the principal, and they cite in support of this contention the case of In Re Lafferty’s Estate, 209 Pa. 44, where the annuitant was given a power to appoint his share of the income, among his children, absolutely or in trust. He appointed his share among his children absolutely. One of the children died before expiration of the trust and devised the share received from the annuitant to her executors for payment of certain annuities. The court held that inasmuch as the annuitant had validly exercised his power of appointment and had thereunder given the appointee an absolute estate, the share so appointed became the absolute property of the appointee and subject to disposition by her. That situation, however, is different from the case at bar, because we are here concerned with the original exercise of the power-of appointment by the donee, and not with the disposition of a validly appointed estate by the appointee.

It is also suggested by the Cleveland Trust Company that the spendthrift provision appears as a separate and distinct article in the will, separated from the trust section by Article V, and that Jennie B. Taylor’s will contains no spendthrift trust. The first of these contentions is untenable because the spendthrift trust is as much a part of the will as any other provision and is to be considered along with the whole will in determining the intentions and plan of John F. Taylor in disposing of his estate. The fact that it is separated from the trust section by another article is unimportant. The contention as to the absence of a spendthrift clause in the will of Jennie B. Taylor is equally without merit because she had only limited powers over disposal of the trust corpus. The so-called spendthrift clause is not carried over into her will but her appointments are read back into John F. Taylor’s will. In Northern Trust Co. v. Porter, 368 Ill. 256, the court said that “the validity of an appointment, under a general testamentary power, must be determined by considering the donee’s appointment as part of the instrument created by the donor,” and in Hopkinson v. Swaim, 284 Ill. 11, it was said that “the effect of the exercise of the power by William Swaim was the same as if the trusts declared had been written in the will of James Swaim . . . .”

The remaining contention of- the Cleveland Trust Company with reference to Article VI, is that it has no effect upon the vesting of the remainder interests, and various cases are relied upon which are not particularly applicable to this will, since they contain no direction to the trustee to make payments or distributions to the beneficiaries in person, which is one of the reasons urged by counsel for all parties, except Cleveland Trust Company, as indicating that there could be no vesting until the distribution of the corpus of the estate.

There remains to be considered the question whether Jennie B. Taylor intended to appoint Lillian P. Ludlow. The trustee for persons not in being presents an effective argument in support of the contention that even if Jennie B. Taylor had power to appoint deceased persons, it is scarcely conceivable that she intended to do so. It is argued that if she had intended that Ralph T. Prall, John Prall and Lillian P. Ludlow should be appointed, notwithstanding that they must be dead at the time of distribution, she could have named them; or if realizing they must be dead at the time of distribution she had intended to appoint to their respective legal representatives, she could and would have appointed to the legal representatives of Ealph T. Prall, John Prall and Lillian P. Ludlow, instead of appointing to the heirs of Sarah J. Prall. Similarly, it is argued that had she intended to appoint to the children of William E. Taylor, who were living at the time she made her will, she could have appointed to them by name, and not as heirs of William E. Taylor, who was living when she made her will; or, if she intended to appoint only those of his children living at her death, she could so have referred to them. The same argument is made by analogy with reference to the appointment to her own heirs at law. It is obviously more reasonable to hold that she intended her heirs to be determined as of the date when distribution would be made than that she intended to appoint to deceased persons. The plan disclosed by the will of Jennie B. Taylor is fairly clear. It was evidently her purpose to appoint two thirds of her husband’s estate to his branch of the family, and one third to hers, — a natural arrangement in view of the family situation. Jennie B. Taylor’s will must have been drawn hurriedly, because it is dated only 6 days after her husband’s death and 4 days prior to her own, and she probably appreciated the impossibility of properly exercising the power by appointing any of the recipients of the monthly payments from income, of which Lillian P. Ludlow was one, because of necessity they would all be dead at the time of such distribution. She must also have realized that she could not, with certainty, name any specific person who would be in existence at the time of such distribution, and therefore named as appointees three classes of persons, some of each of which would be in existence at the time of distribution, but whose identity could only then be ascertained.

Jennie B. Taylor’s intention becomes material only on the question as to -whom she intended to appoint, and in seeking to answer this question, the time when the persons appointed by her would take according to the provisions of her husband’s will, is of strong significance. To this extent the will of John F. Taylor may be considered in ascertaining the intention of Jennie B. Taylor, because his will is the source of her authority to appoint, and it was in view of the time fixed for distribution in her husband’s will that she appointed the heirs of William E. Taylor, the heirs of Sarah. J. Prall, and her own heirs. She undoubtedly knew that the time fixed for distribution was as of the date of the death of the beneficiaries of income named in her husband’s will, and that Ralph T. Prall, John Prall and Lillian P. Ludlow were among those named income beneficiaries. She also knew that the heirs of Sarah J. Prall, determined as of the latter’s death, were Ralph and John Prall and Lillian P. Ludlow, and that if the heirs of Sarah J. Prall were to be determined as of the latter’s death, the death of those heirs must occur before the trustee could distribute the corpus. It would do violence to many of the provisions of the will to hold that she intended to appoint persons to receive the trust estate who must necessarily be deceased at the time the estate was to be distributed. From these considerations it seems logical to conclude that she intended to appoint those who would be of the class of heirs of William E. Taylor, of Sarah J. Prall, and of herself, to be determined as of the date of distribution. We think the court properly held that the interests in the principal of the trust will not vest until the termination of the trust, and therefore Lillian P. Ludlow acquired no interest therein.

- The second question submitted to the court is whether in the event of the death of any of the named monthly recipients of net income prior to termination of the trust there would descend to the personal representatives of such decedent any interest in the net income of the trust estate. The decree found that it was the intention of the testator that the trust should be for the exclusive benefit of those named in the will or appointed under the power granted, who should be living at the time or times of distribution thereunder of principal and income of such trust; that the testator did not intend that if any of those named to receive monthly payments of net income should die prior to the termination of the trust, there should descend to the personal representatives of such party any interest in the net income of the trust estate; and that on the death of Mary B. Burdick and Lillian P. Ludlow no interest in the net income descended to their legal representatives.

The testator’s directions with reference to the payment of income from the trust estate were that after the death of his wife his trustee should pay $2,000 to each of the children of his brother, and then hold, invest, manage and control the remainder of the trust estate, as long as Ralph T. Prall, Lillian P. Ludlow, John Prall, Ellen R. Bennett, Mary B. Burdick, and Harold B. Burdick should continue to live, and as long as Carrie Belle Prall, wife of Ralph T. Prall, should live and remain unmarried, provided she should survive her husband; and that upon the death of the last survivor of the foregoing named six persons and of Carrie Belle Prall, or upon her marriage if she should survive her husband, the trust should terminate; that from the net income of the trust the trustee should pay monthly to Ralph T. Prall, $250; to Lillian S. Ludlow, $150; to John Prall, $100; to Ellen R. Bennett, $150; to Mary B. Burdick, $100; and to Harold B. Burdick, $100, and that if Carrie Belle Prall should survive her husband, the trustee should pay to her as long as she lives and remains unmarried, $250 a month; that if there should be any net income remaining after the payments so provided for, shall have been made, such remaining income should be paid over and distributed by the trustee in semiannual instalments to such persons as his wife should by her last will and testament name and appoint to receive the same; that all payments of income should be made to the beneficiaries in person, or upon their personal receipt, and that such beneficiary should not have any right to sell, incumber, alienate or dispose of his right, title or interest or share in the income of the trust estate prior to payment and actual receipt thereof, and that such interest shall not be liable for the beneficiary’s debts.

The Cleveland Trust Company and the guardian ad litem contend, however, that the monthly payments of income are in the nature of annuities, and a considerable portion of their briefs are devoted to a consideration of annuities and authorities purporting to hold that such annuities are not terminated by the death of the annuitant, but pass to his personal representative. The cases cited are not in point on the question involved because under the direction given by John F. Taylor to his trustee to make the monthly payments of income to the named beneficiaries as long as any one of them should continue to live, in each instance provision was made for payment to such beneficiary in person or upon his personal receipt.

We think the case of Routt v. Newman, 253 Ill. 185, is precisely in point on the question under consideration. There, as here, it was provided that payment of income was to be made to the beneficiary during the continuance of the trust, and that the trust was to continue until all the income beneficiaries were deceased, and was then to terminate. There, as here, counsel urged that the directions to the trustee to pay income periodically to the beneficiary constituted an annuity that vested in the beneficiary until the termination of the trust. The court held adversely to this contention, however, and said: “It is provided that ‘any person under the terms of this said trust who shall become the recipient of the said remaining income, or any portion thereof, shall have same paid to him, her or them in cash and in person into their hands, and not to be paid upon any written or verbal order nor upon any assignment or transfer by any such person.’ The continued existence of the recipient of the fund was necessary to a compliance with this requirement.” (Italics ours.) The claim to income by the representative of the deceased beneficiary in that case was denied, and it was held that any income which he might have received, if living, not having been disposed of by the will, descended to the heirs of the testatrix. The language of the Taylor will is more definite and more restrictive than was the Newman will, and we think it precludes the existence of any right to income in the personal representative of Lillian P. Ludlow.

In arguing the question in their briefs counsel for the parties who seek to sustain the decree make an analysis of the many provisions of the will to show the testator’s intent, but it would be a mere repetition of much of what has already been said to prolong the discussion. We think it was clearly intended by the testator that monthly payments of income should cease upon the death of a beneficiary, and that no interest in any of-the net income passed to the personal representative of Lillian P. Ludlow upon her death. The Routt case sustains this conclusion.

The third question of construction submitted to the court was whether the payments of income, which would have otherwise been paid to Mary B. Burdick and Lillian P. Ludlow had they lived, should after their death have been accumulated until termination of the trust, or whether it constituted the income referred to in paragraph (d) of Article IV of John F. Taylor’s will as “income remaining out of said trust estate after the payments hereinbefore provided for have been made. ’ ’ The court by its decree found that John F. Taylor did not intend that if any of the parties named in paragraph (c) of Article IV of his will (which included Mary B. Burdick and Lillian S. Ludlow) should die prior to the termination of the said trust, that such portion of the net income, as would have otherwise been paid to such decedent had he or she lived, should be accumulated until the termination of the trust, but that it was the intention of the testator that all such portion, remaining from time to time after current payments to the living beneficiaries had been made, should become and constitute income referred to by the testator in paragraph (d) of Article IV of his will, as “income remaining out of said trust estate after payments hereinbefore provided for shall have been made,” and should accordingly be paid over and distributed in semiannual instalments to the persons named and appointed to receive such remaining income by the will of Jennie B. Taylor. The record discloses that deficiencies in the monthly payments of income, which the trustee was directed to pay the different beneficiaries, did occur, and that the total amount of those deficiencies in the amounts which Lillian P. Ludlow would otherwise have received aggregated $1,183.47. However, during the earlier part of the trust period she received in addition to these monthly payments her distributive shares of the “remaining income,” totaling $2,060.30, indicating that deficiencies of the lean years had more than been made up by later surpluses.

The question as to whether deficiencies in periodical payments to a beneficiary under a will should be paid out of subsequent accumulations is, like other questions arising in the construction of the will, to be determined in accordance with the intention of the testator. (3 Corpus Juris Secundum, p. 1382, sec. 5 (c).) The will of John P. Taylor clearly indicates his intentions as to the fund out of which the monthly payments should be made, and the disposition that should be made of any remaining income. To repeat the various provisions of the will would unduly extend this already lengthy opinion. We are satisfied, however, that the decree properly construed the will as to his intentions in this respect, and the courts, under like circumstances, have so held. (In Re Pierce’s Estate, 56 Wis. 560; Comstock v. Comstock, 78 Conn. 606.) In the latter case the court said that “each year is made a final period.” In Fate v. Fate, 295 Ill. App. 271, the court, under similar circumstances, held that there could be no payment of deficiencies from surplus, and various other cases cited in the foregoing decisions and in plaintiff’s brief are to the same effect.

On cross appeal, the First National Bank, as trustee, seeks a reversal or modification of the decree with reference to past due income, ordered to be applied from month to month as received, pro rata, to payment of deficiencies to Lillian P. Ludlow and others. After the complaint herein was filed certain defaulted interest on bonds belonging to the trust estate was paid to the trustee, and by an amendment to the complaint the court was requested to instruct the trustee as to what disposition should be made of these and other like payments as they are received. The decree directed that such payments be applied from month to month as received, pro rata, to the payment of deficiencies existing in monthly payments to beneficiaries, and that such pro rata payments on account of deficiencies in payments to Lillian P. Ludlow during her lifetime be paid to the Cleveland Trust Company as executor of her will. This provision is inconsistent with the rest of the decree, and for the same reasons as are hereinbefore discussed is contrary to the intent of the testator as indicated in his will. Such payments, if made, cannot be made personally to Lillian P. Ludlow, as required, and would be the result of a testamentary conveyance by her of an interest in the income of the trust estate prior to receipt thereof by her. Such payments would also become subject to payment of her debts and would result in the application of income received by the trustees after her death to the payment of benefits that were required to be paid out of the net income of the month or months in which the deficiency occurred. It was held in Mutual Ben. Life Ins. Co. v. Herold, 198 Fed. 199, that past due income constitutes income of an estate as of the date that it actually is received, and that seems to us to be a sound rule. Therefore this part of the decree should be reversed and it is so ordered.

The only remaining question relates to the allowance of attorneys’ fees. When the hearing of the cause had been concluded before the chancellor it was suggested that attorneys participating confer, and, if possible, reach an agreement as to fees to be taxed against the trust estate. As the result of this conference plaintiff trustee indicated that it would he willing to have the value of the estate considered as $300,000, and that upon this basis the allowance of fees should not exceed 5 per cent of that amount, or $15,000. The fees allowed were slightly in excess of this amount, namely, $18,000, and this amount included $3,500 allowed to the Cleveland Trust Company. The principal complaint upon the cross appeal of plaintiff trustee is that since the necessity of filing these proceedings arose out of the contentions made by the Cleveland Trust Company, and it having failed to prevail in having the will construed according to its contentions, no attorneys’ fees should be allowed to the Cleveland Trust Company because as a result of the litigation it is shown to have had no interest in the construction of the will. It is also urged that the principal attorneys for Ealph T. Prall et al., as well as those for the Cleveland Trust Company, were nonresident and nonlicensed to practice in Illinois, and therefore that these parties are not entitled to fees. The record discloses, however, that the Cleveland attorneys appeared with permission of the court, and were also represented by associate local counsel. All the different interests participated in the proceedings and their pleadings indicate that they were all in accord that the will required construction in the several respects indicated. It seems to us, therefore, that the allowance of fees was proper. The aggregate amount allowed by the decree was only $3,000 more than the 5 per cent aggregate of $15,000 which plaintiff trustee had indicated as being reasonable, and this excess of $3,000 was apportioned among some five different parties.

It is ordered that the decree of the circuit court be affirmed in all respects except that part thereof which directed payment to the Cleveland Trust Company on account of deficiencies in monthly payments to Lillian P. Ludlow, and as to that part the decree is reversed.

Decree affirmed in part and reversed in part.

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


source: Caselaw Access Project

author: Presiding Justice Wolfe.

license: Public Domain

text:
    Fred A. Jacobs, Appellee, v. Albert J. Weil, Appellant.
    Gen. No. 9,607.
    opinion filed February 7, 1941;
    rehearing denied March 17, 1941.
    Clarence W. Heyl and Robert E. Kavanaugh, for appellant; Irving L. Block and Harold Sternfield, for appellee.
   Opinion by

Presiding Justice Wolfe.

“Not to be published in full.”


author: Justice Huffman.

text:
    In re Last Will and Testament of Edward C. McClary, Deceased (Pearl M. Peters, Appellee), v. John A. Berry, Administrator With Will Annexed of the Estate of Edward C. McClary, Deceased, and Frank W. McClary, Appellants.
    Gen. No. 9,609.
    opinion filed February 14, 1941.
    Harold A. Butters, Andrew J. O ’Connor and John H. Armstrong, for appellants; W. I. Hibbs, for appellee.
   Opinion by

Justice Huffman.

“Not to be published in full.”


author: Presiding Justice Hebel.

text:
    People of the State of Illinois ex rel. John S. Rusch, Appellee, v. Oscar Tucker et al., Appellants.
    Gen. No. 41,156.
    opinion filed February 26, 1941.
    Simon Herr and Mayer Goldberg, for appellants; Thomas J. Courtney, State’s Attorney, for appellee; John F. Cashen, Jr., of counsel.
   Opinion by

Presiding Justice Hebel.

“Not to be published in full.”


text:
    People of the State of Illinois ex rel. John S. Rusch, Appellee, v. Henry Levin et al., Appellants.
    Gen. No. 41,386.
    opinion filed February 26, 1941.
    Simon Herr and Mayer Goldberg, for appellants; Thomas J. Courtney, State’s Attorney, for appellee; John F. Cashen, Jr., of counsel.
   Opinion by

Presiding Justice Hebel.

“Not to be published in full.”


text:
    Hallie E. McCowan, Appellee, v. Don C. McCowan et al., Appellant.
    Gen. No. 41,399.
    opinion filed February 26, 1941.
    Irving Breakstone, for appellant; Brooks, Coleman & Peterson, for appellee.
   Opinion by

Presiding Justice Hebel.

“Not to- be published in full.”


text:
    John W. Ellis, Appellant, v. Market Town Company, Appellee.
    Gen. No. 41,482.
    opinion filed February 26, 1941;
    rehearing denied March 12, 1941.
    Frank L. Petru, for appellant; Hummer, Van Ness & Yowell, for appellee; John J. Yowell, of counsel.
   Opinion by

Presiding Justice Hebel.

“Not to be published in full.”


text:
    Halsted Calumet River Golf Association, Appellee, v. Riverdale Coal and Dock Company, Appellant.
    Gen. No. 41,544.
    opinion filed February 26, 1941.
    Seyfarth & Atwood, for appellant; Karl Edwin Seyfarth and Doval Benjamin Williams, of counsel; Blake C. Smith and Rathje, Hinckley, Barnard & Kulp, for appellee; Bernard Barnard, of counsel.
   Opinion by

Presiding Justice Hebel.

“Not to be published in full.”


author: Justice Burke.

text:
    People of the State of Illinois ex rel. John S. Rusch, Appellee, v. Sidney Brill et al., Appellants.
    Gen. No. 41,111.
    opinion filed February 26, 1941.
    Simon Herr and Mayer Goldberg, for appellants; Thomas J. Courtney, State’s Attorney, for appellee; John F. Cashen, Jr., of counsel.
   Opinion by

Justice Burke.

‘ ‘Not to be published in full.”


author: Mr. Justice Burke.

text:
    John Wesley Riggs, Minor, by Elwood Riggs, His Next Friend and Elwood Riggs (Appellees and Cross-Appellants), v. William M. Barrett, Individually and as Administrator With Will Annexed of Estate of Enid P. Barrett, Deceased (Appellant under Separate Appeal). Kathryn A. Culver et al., Appellees. Metropolitan Trust Company, Ancillary Administrator De Bonis Non With Will Annexed of Estate of Enid P. Barrett, Deceased (Appellee and Cross-Appellant). Ida Groves Gregory (Appellant). Continental Illinois National Bank and Trust Company of Chicago, Successor Trustee (Appellee).
    Gen. No. 41,465.
    opinion filed February 26, 1941;
    rehearing denied March 10, 1941.
    Deneen & Massena and Henry H. Koven, for certain appellant; Marshall A. Pipin and David Bogolub, of counsel; Abraham W. Brussell, for certain other appellant; McCulloch, McCulloch & McLaren, for certain appellee; Frank H. McCulloch, Herman L. Taylor and Ned P. Veatch, of counsel; Winston, Strawn & Shaw, for certain other appellees and cross appellants; James H. Cartwright, Albert W. Potts and George B. Christensen, of counsel; Max M. Grossman and Samuel Grossman, for certain other appellee and cross appellant; Louis N. Grossman, of counsel; Michael F. Ryan, guardian ad litem, for certain other appellees; Richard F. McPartlin, Jr., of counsel.
   Opinion by

Mr. Justice Burke.

“Not to be published in full.”


text:
    John Meizis and Amelia Meizis, Appellants, v. Joseph Domeikis et al. Charles Miller, Appellee.
    Gen. No. 41,577.
    opinion filed February 26, 1941.
    Irving S. Abrams and Harry S. Jacobs, for appellants; Irving S. Abrams, of counsel; Philip A. Weinstein, for appellee.
   Opinion by

Justice Burke.

“Not to be published in full.”


text:
    Howard F. Hobbs, Appellee, v. H. M. Gousha Company, Appellant.
    Gen. No. 41,583.

      opinion filed February 26, 1941.
    Max Murdock, for appellant; Gariepy & Gariepy, for appellee; Fred A. Gariepy, Owen Rall and John Spalding, of counsel.
   Opinion by

Justice Burke.

“Not to be published in full.’’


author: Justice Denis E. Sullivan.

text:
    People of the State of Illinois ex rel. John S. Rusch, Appellee, v. Milton Festenstein and Barney Tract, Appellants.
    Gen. No. 41,134.
    opinion filed February 26, 1941.
    Simon Herr and Mayer Goldberg, for appellants; Thomas J. Courtney, State’s Attorney, for appellee; John F. Cashen, Jr., of counsel.
   Opinion by

Justice Denis E. Sullivan.

“Not to be published in full.’’


text:
    Chicago Title and Trust Company, Trustee, Appellee, v. Two-O-One East Delaware Place Building Corporation et al., Defendants. Minnie H. Case, Appellant, v. Chicago Title and Trust Company, Trustee, et al., Appellees.
    Gen. No. 41,234.

      opinion filed February 26, 1941;
    rehearing denied March 10, 1941.
    Walter Hamilton, for appellant; Gottlieb & Schwartz, for certain appellee; Sonnenschein, Berkson, Lautmann, Levinson & Morse, for certain other appellees; Winston, Strawn & Shaw, for certain other appellee.
   Opinion by

Justice Denis E. Sullivan.

“Not to be published in full.”


text:
    Marine Trust Company of Buffalo, Executor of Estate of Julia T. Sherman, Deceased, Appellee, , v. Frank G. Reynolds et al., Successor Trustees under Last Will and Testament of William D. Boyce, Deceased, et al. (Defendants). Appeal of Frank G. Reynolds, Individually and as Successor Trustee under last Will and Testament of William D. Boyce, Deceased, et al., Appellants.
    Gen. No. 41,248.
    opinion filed February 26, 1941;
    rehearing denied March 10, 1941.
    West & Eckhart and Harold L. Richolson, for appellants; Roy O. West and Samuel B. Kraus, of counsel; Urion, Bishop & Sladkey, for appellee; Howard F. Bishop, Jerome J. Sladkey and Robert F. Dewey, of counsel.
   Opinion by

Justice Denis E. Sullivan.

“Not to be published in full.”

       See Callaghan’s Illinois Digest, same topic and section number.


text:
    Edna Ives, Appellee and Cross-Complainant, v. Hal G. Otis and Esther Spooner, Defendants. Appeal of Esther Spooner, Appellant.
    Gen. No. 41,415.
    opinion filed February 26, 1941.
    John A. Bloomingston, for appellant; Ryan, Sinnott & Miller, for appellee; Burt A. Crowe, for cross appellees.
   Opinion by

Justice Denis E. Sullivan.

“Not to be published in full.’’


text:
    Ruth Carlson, Appellant, v. Clarence O. Carlson, Appellee.
    Gen. No. 41,489.
    opinion filed February 26, 1941.
    Zaleski & Zaleski, for appellant; Cooney & Verhoeven, for appellee.
   Opinion 'by

Justice Denis E. Sullivan.

“Not to be published in full.’’


author: Mr. Presiding Justice Riess

text:
    Francis E. Judd, Appellee, v. Pearl C. Sutton, Appellant.
    Gen. No. 9,236.

      Opinion filed October 15, 1940.
    Rehearing denied and opinion modified April 1, 1941.
    Thomas W. Hoopes, of Springfield, for appellant.
    Hope & Hope, of Springfield, for appellee.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

On February 27, 1929, plaintiff appellee, Francis E. Judd, recovered a judgment by confession in the circuit court of Sangamon county, Illinois, against the defendant appellant, Pearl C. Sutton, and W. N. Sutton, her husband, on a promissory note signed by both defendants, dated February 24, 1928, and due 90 days after date. On March 4, 1929, defendants filed a motion to open up the judgment and for leave to plead, which motion was granted on November 22, 1929, and the judgment was opened and ordered to stand as security until final determination of the cause. Defendant W. N. Sutton died on December 29, 1929, and subsequent to due suggestion of his death, the defendant Pearl C. Sutton filed her plea to the general issue with notice of the following special defenses: (a) That she was only a surety on the note and that the time of payment was extended without her consent and that she was released thereby; (b) that the note was secured by false and fraudulent representations, and (c) alleging failure of consideration.

The issues so joined were submitted to a jury, and at the close of all the evidence, the court directed a verdict for the plaintiff, upon which judgment in the sum of $2,280 was entered on November 13, 1939. Defendant filed a motion to set aside the verdict and judgment and grant a new trial,, which motion was denied by the trial court, and this appeal by the defendant Pearl C. Sutton then followed.

Two errors are assigned by the appellant, namely: (1) That there was evidence fairly tending to prove the defenses and that the cause should have been submitted to the jury, and (2) that the court erred in' refusing to set aside the verdict and judgment and grant a new trial and in entering judgment on the directed verdict. Defendant abandoned her contention that there had been an extension of time for payment of the promissory note in question, resulting in her release as an alleged surety thereon, and there was no evidence in the record tending to sustain this contention.

If the evidence fairly tends to prove the defenses or either of them, it is error for the trial court to direct a verdict in favor of the plaintiff and the court should set aside the directed verdict and judgment entered thereon and grant the defendant a new trial. Bechtel v. Marshall, 283 Ill. 486, 119 N. E. 619; O’Leary v. Chicago City Ry. Co., 235 Ill. 187, 85 N. E. 233.

If there was no evidence offered which fairly tended to prove any of the defenses asserted by the defendant, the court properly directed a verdict in favor of the plaintiff and entered judgment thereon. Evans v. Evans, 163 Ill. App. 203, 209; Davidson v. Zorger, 181 Ill. App. 113, 116; Rack v. Chicago City Ry. Co., 173 Ill. 289, 50 N. E. 668; Marshall v. John Grosse Clothing Co., 184 Ill. 421, 56 N. E. 807.

In order to pass upon the contentions of the respective parties in relation thereto, it is necessary to briefly outline the evidence. It appears therefrom that the note sued on had been given by W. N. Sutton and the defendant Pearl C. Sutton to the plaintiff, Francis E. Judd, a retired farmer, in payment of the purchase price of certain shares of stock and interests previously acquired by Judd in the unincorporated “Stulor Manufacturing and Trust Company,” designated as a common-law trust, which said shares of stock or interest certificates were signed by the Stulor Manufacturing Company by Delos C. Stults, President, and J. Gr. Bishop, Secretary, and which interests W. N. Sutton, since deceased, had undertaken to purchase from Judd, together with the latter’s rights under a certain accompanying contract with said company concerning the manufacture and sale of heaters at its plant in Springfield, Illinois, and a division of profits arising therefrom.

The above mentioned contract in writing was entered into “by and between D. B. Stults, doing business as Stulor Mfg. Co., Decatur, Illinois, party of the first part, and Francis E. Judd of Springfield, Illinois, party of the second part.” It further recited that the party of the first part was the inventor of certain mechanical parts and devices known as the Stults Super-Heater and certain other machinery and appliances, “and is desirous of procuring additional money for the manufacture and further development of said Super-Heater and other appliances and machinery; and whereas, the party of the second part has agreed to furnish the sum of Two Thousand Dollars ($2,000) to the party of the first part to be used for the above purposes; now, therefore, in consideration of the party of the second part agreeing to furnish to the party of the first part the said sum of Two Thousand Dollars ($2,000), the party of the first part agrees to pay to the party of the second part annually a sum equal to one-half of the net profits derived by the party of the first part from the manufacture and sale of said Super-Heater in the United States and of all other machinery and appliances for which the party of the first part now holds patents or patents are applied for. ’ ’

It further provided that in addition to one half of the net profits, the party of the second part was to receive the sum of eighty dollars for each and every heater sold in Sangamon county, Illinois, to he paid upon receiving settlement for each of said heaters. It was to continue for the life of the patents and the party of the second part was to have access to the books at all reasonable times to ascertain the net profits of the business. The contract further provided for the execution of a promissory note in the sum of two thousand dollars payable to the order of the party of the second part and payable on or before 10 years after date without interest, secured by trust certificates issued by the party of the first part “to the amount of $2,000 interest in said business, said note to be cancelled and returned to the party of the first part when party of the second part has received money and profits to the amount of said Two Thousand Dollars ($2,000). And the party of the second part is to have at his option trust certificates in the amount of said Two Thousand Dollars ($2,000) or if said business is incorporated certificates of stock to said amount, at par.” The latter were controlled by the terms of the contract.

The company was never incorporated and the interest of Francis E. Judd acquired through and under the terms of said contract, which was assigned in writing and delivered to W. F. Sutton, comaker of the promissory note, by the plaintiff, Francis E. Judd, together with the certificates of interest in said business referred to in said contract, constituted the valid consideration for which the Sutton note was given. The contract was signed “Delos B. Stults (seal) doing business as Stulor Mfg. Co., Francis E. Judd (seal).” The business continued to be conducted until and for some years subsequent to the death of Sutton. It is conceded that neither of the Suttons returned or offered to return or reassign said contract or certificates evidencing as interest in said business to the plaintiff.

Ninety of the share certificates bore Judd’s indorsement in blank and the remaining one hundred and ten were unindorsed, but all were delivered, together with the contract bearing an assignment by Judd of all interest thereunder to Sutton and were received by him through W. A. Brittin, his agent, through whom Sutton had solicited and negotiated the purchase and transfer of plaintiff’s interest in the concern in the manner arranged and consummated by the parties thereto at the time. Subsequently, .certain interest credits on the note were paid in cash by said Sutton to Judd, and the remainder due on the note was promised to be paid within the following month. Such payments, however, were not made, but the certificates and contract were retained by W. N. Sutton, who had held certain other stock shares or certificates of interest in said company prior to the purchase of Judd’s interest therein, all of which were still so held and retained when the suit was filed. The defendant Pearl C. Sutton, who signed the note, became obligated to pay the remainder due thereon.

We find in the record no evidence of any false or fraudulent representations on the part of the plaintiff to the defendants and that the parties dealt in all respects at arm’s length with each other; that no fiduciary relationship existed between them and that there was an actual delivery and acceptance of the shares and contract as between Judd and Sutton on the terms agreed to and ratified by the respective parties. Whether or not the ultimate value of the stock or success of the company was less than had been anticipated is not material to the issues herein. The defendants held an interest in and knew as much about the entire business and its conduct as did the plaintiff, and no representations were made to the defendant as to the value or character thereof. We hold that they received what they purchased and that nothing appears in the evidence to warrant the claim that there was either false representations or a failure of consideration.

Prom a careful examination of the record and abstract herein, we are further constrained to hold that there was no evidence fairly tending to prove either of the defenses offered by the appellant herein and that the trial court was justified in granting the directed verdict on the promissory note sued upon in favor of the plaintiff and in entering judgment thereon. The court, therefore, did not err in overruling defendant’s motion to set aside said verdict and judgment and grant a new trial.

Finding no reversible error in the record, the judgment of the circuit court of Sangamon county will be affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Wolfe

text:
    John M. Berry, Surviving Executor of Estate of Thomas F. Berry, Deceased, Appellee, v. Thomas Berry, Jr., Appellant.
    Gen. No. 9,562.
    Opinion filed February 7, 1941.
    Rehearing denied April 2, 1941.
    F. J. Campbell, of Galena, and James L. Coburn, of Galena, for appellant.
    Nack & Nack, of Galena, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

Thomas F. Berry, of Jo Daviess county, Illinois, died leaving a last will and testament,, which was admitted to probate in said county on January 6, 1931. Letters testamentary were issued to Ellen Berry, Ms widow, and to John M. Berry, a son, without bond. The second clause of the testator’s will is as follows: “After the payment of my just debts and funeral expenses I give and bequeath the use, income, interest and rents of all the rest, residue and remainder of my estate, be the same real, personal and mixed, wherever situate and to which I shall be entitled to at the time of my death, to my beloved wife, Ellen Berry, she to have and to hold the same for and during the term of her natural life; if such income, interest and rents shall not be sufficient for the support and maintenance of my said wife, in health and in sickness she shall have the right to use of the principal of my estate for all such purposes.” After the death of the testator’s widow, the real estate owned by the testator was devised to the two sons. The remainder of the estate was given to the two sons in equal parts.

Shortly after the issuance of letters testamentary to the executors, an inventory was filed describing the real estate, and showing one, $100 liberty bond. ■ After the inventory was filed, no further proceedings were had in the court relative to said estate, until March 12, 1938, at which time the surviving executor, John M. Berry, filed his report. Ellen Berry had died a short time previous. Because of the interest of the presiding judge of the county court, who had acted as attorney in the case, prior to his election, the cause was certified to the circuit court.

A petition was filed in the circuit court by the surviving executor asking for an order of said court to sell real estate to pay the debts of Thomas F. Berry, deceased. At the same time, he also filed what is alleged to be a true and correct report of the receipts and expenditures which he had made as executor of said estate. An objection was filed to the report by the appellant, Thomas Berry, Jr., in this case and an amended report was filed. After hearing the evidence, an order was signed by the trial court that, the report of the executor be approved, and that he should proceed to sell the real estate to pay the debts of the testator, Thomas F. Berry, Sr., as prayed for in said petition. It is from this order that the appeal is perfected to this court.

The inventory filed in the estate shows that there was only $100 of personal property owned by the testator at the time of his decease, but in the petition to sell real estate to pay debts of the testator, it is stated that at the time of the death of Thomas F. Berry, there was cash on hand in the Merchant’s National Bank of Galena, Illinois, in the sum of $3,545.82, and cash on deposits in the Galena National Bank, Galena, Illinois, of $3,000. In the testimony of John M. Berry, he states in answer to a question, “Where did you get the money to pay the expenses?” He answered, “Out of the estate of Thomas F. Berry”; “that there was something-over $6,000.00 deposited in the bank and that the money was checked out by him and his mother for executor’s expenses.”

From the record of the proceedings, it is established that at the time of the death of the testator, there was more than $6,000 in cash on deposits in the banks at Galena, Illinois. According to the report, and the record in this case, there was only approximately $1,000 indebtedness of the testator at the time of his death, and this included the funeral expense for the testator.

There are numerous assignments of error by the appellant why this judgment should be reversed, but we deem it necessary to consider only the first three, which will be discussed together. The assignments are: That the appellee has not made a just and true account of the personal estate, and deposits of the estate to the court; that the personal estate of the decedent was sufficient to pay the just claims and demand against said estate; that the claims and debts of the estate were incurred subsequent to the death of the testator. We think the law is well established that in a proceeding to sell real estate to pay the debts of a testator, such debts that have actually been incurred by the testator himself, prior to his death, and his own funeral expenses, are the only debts that can be considered by the court in ordering real estate to be sold to pay debts. The law is clearly stated in the case of Walker v. Diehl, 79 Ill. 473, where the court uses this language: “An administrator derives his power to sell lands to pay debts from the statute, and unless the petition shows, by proper averments, the existence of a state of facts contemplated by the statute to authorize a sale, and those averments are sustained by proof, a decree of sale can not be sustained.

“The lands of one dying intestate descend to the heir. The administrator takes no estate, or title in the lands. He has only a bare naked power to sell the lands for the payment of debts existing at thé time of the death of the decedent, in case the personal property is insufficient.

“We understand the law to be well settled that real estate can only be sold, in a proceeding of this character, to liquidate debts which were in existence at the time of the death of the decedent. Fitzgerald v. Glancy, 49 Ill. 465.

“An administrator can not contract or incur indebtedness in the settlement of an estate, and make such indebtedness alone the foundation for a decree to sell real estate. If such was declared to be the law, landed estates would be at the peril of reckless and designing administrators, who might, in many instances, waste them in the payment of costs and commissions accruing during a negligent settlement of an estate.

“The policy of the law cannot uphold a decree of sale, unless the petition avers, and the proof sustains the averment, that the decedent, at the time of his death, left debts that were legally chargeable upon his estate.” This case has been followed in Edwards v. Lane, 331 Ill. 442, and in In re Estate of Thurber, 311 Ill. 211; People for use of Stough v. Danforth, 293 Ill. App. 280. In another early case, Fitzgerald v. Glancy, 49 Ill. 465, the law is there stated: “This lot descended to the heirs at law of Murray, affected only by such debts as existed against him at the time of his death. The very purpose of the application, as we regard the statute, is to obtain a fund by the sale of real estate, there being no personal estate, to pay debts so existing, and an administrator, by no law of which we are cognizant, can contract debts against the estate he represents, and to pay them, obtain an order to sell the land. ’ ’

In the case before us, Mrs. Berry was given the income from the whole estate of her deceased husband, both personal and real, with the right to use any and all of the principal, if necessary, for her support and maintenance. The estate which she took at the death of her husband was the income from the realty, and also the personal property less the expense of the administration of the debts and funeral expenses of her deceased husband. The only use that the executors could make of the estate, was to collect the accounts due and to pay all claims that were properly filed in the probate court and allowed as just claims against the testator’s estate. The report of the surviving executor shows that all of the indebtedness was incurred by the executors themselves after the death of the testator. As before stated, the only authority that the statute gives to sell real estate to pay debts, is for the debts that were incurred by the testator himself, prior to his death, and for funeral expenses.

It is our conclusion that the trial court erred in signing the order for the executors to sell the real estate in question, to pay the debts that had been incurred by the executors after the death of the testator. The order of the trial court is hereby reversed and the cause remanded.

Reversed and cause remanded.


text:
    Susie Powell and Jacob A. Powell, Appellees, v. The Myers Sherman Company, Appellant.
    Gen. No. 9,601.

      Opinion filed February 7, 1941.
    Rehearing denied March 26, 1941.
    Clarence W. Heyl, of Peoria, and Arthur H. Shay, of Streator, for appellant.
    Finn & Miller, of Chicago, and Taylor E. Wilhelm, of Ottawa, for appellees.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

Susie Powell and Jacob A. Powell, husband and wife, brought suit in the circuit court of LaSalle county, against the Myers Sherman Company, a corporation, claiming damages for personal injuries as a result of a collision oceuring between the cars of Susie Powell and the defendant, on Route No. 17, a concrete paved road about one and one-half miles west of the city of Streator, Illinois. Said collision occurred on the evening of July 26, 1938.

The amended complaint filed by the plaintiffs alleged that Susie Powell was the owner of a Ford motor vehicle or automobile truck and while she and her husband were traveling in her automobile on a paved road about a mile and one-half west of the city of Streator, Illinois, and while each were in the exercise of ordinary care for their own safety, the defendant company’s truck, which was being driven by their agent or servant, collided with the automobile of the plaintiffs, and both of the plaintiffs were injured. It is further alleged that just prior to, and at the time of the collision, Jacob A. Powell was driving the automobile of Susie Powell and that Susie Powell was a passenger in the automobile with her husband, Jacob. The complaint charges that the defendant was guilty of several careless, negligent and reckless acts. First, that the defendant then and there so carelessly and negligently propelled, operated and maintained said automobile truck, that by and through the carelessness and negligence of said defendant, as aforesaid, said truck then and there ran into and collided with the automobile in which plaintiffs were riding, as aforesaid, (b) That there was then and there in force a certain statute of the State of Illinois entitled ch. 95%, secs. 54 and 55 Smith-Hurd’s Revised Statutes, which provides that upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, and the drivers of vehicles proceeding in opposite directions shall pass each other to the right; that the highway aforesaid was of sufficient width for the vehicles in question to pass; that said defendant, by its servant and agent aforesaid, then and there failed and neglected to propel and operate said vehicle on the right half of the roadway, but propelled and operated said truck over the center line of said roadway and upon the left-hand side thereof; that said failure was in violation of said statute and negligence, (c) That said defendant, by its servant and agent aforesaid, then and there propelled and operated said truck with a wilful and wanton disregard for the safety of other persons or property and was guilty of reckless driving as defined in sec. 145, ch. 95%, Smith-Hurd’s Revised Statutes; that as a proximate result of the careless, negligent, and wilful and wanton conduct of said defendant, as aforesaid, said truck then and there ran into and collided with the automobile in which plaintiffs.were riding, as aforesaid, and thereby each of the plaintiffs were injured, and sustained damages.

To the amended complaint, the defendant filed its answer and admitted the ownership of the truck in question, and the agency of the driver of said truck. The answer denied any and all acts of negligence or wilful and wanton misconduct on the part of the defendant, and denied that either of the plaintiffs were in the exercise of ordinary care for their own safety at the time of the collision.

The case was tried before a jury which rendered a verdict in favor of each of the plaintiffs, allowing the damages for Susie Powell, in the sum of $14,500, and damages to Jacob A. Powell for $750. The defendant entered motions for judgment notwithstanding the verdicts, which were overruled by the court and the defendant then entered a motion for a new trial and specified numerous reasons why the same should be granted. The court overruled the motions for a new trial and entered judgment on the verdict for each of the plaintiffs. It is from these judgments that the case is brought to this court on appeal.

It is the contention of the plaintiffs that they left the city of Streator on the afternoon in question; that the pavement was dry and that they were traveling in a westerly direction on their way to Missouri; that they were traveling at a reasonable rate of speed; that the husband, Jacob A. Powell, was driving the automobile of Susie Powell on the north side of the black line on the pavement in what commonly would be called the west lane of traffic; that as they approached a bridge about a mile and one-half west of Streator, they noticed the defendant’s truck, being driven by its agent, coming towards them; that as the truck ap°proaehed the plaintiffs, the driver of the truck waved his hand at some children and about the time he did so, he drove over into the north lane of traffic and into the lane in which the plaintiffs’ car was proceeding and the collision occurred.

It is the contention of the defendant that the plaintiffs, that while driving in a westerly direction, Jacob A. Powell drove the plaintiff’s car on the south side of the black line, or in the eastbound lane of traffic; that in order to avoid a collision, the driver of defendant’s truck pulled his truck over on the north side of the pavement into the westbound lane of traffic and that just before the collision occurred, Jacob A. Powell turned the plaintiffs’ car sharply to the right and collided with the truck of the defendant.

The evidence shows that the collision occurred upon the bridge in question, and that after the accident was over, both the plaintiffs’ and the defendant’s cars were north of the black line in the center of the road. The witnesses testified, and the photographs of the plaintiffs’ car and the defendant’s truck clearly show that the left-front side of plaintiffs’ Ford and the left front side of the defendant’s truck came together. The plaintiffs’ car was badly damaged, but the only damage done to the truck was to the front end thereof. The frame of defendant’s truck was much higher than the frame of the plaintiffs ’ Ford, and as the cars came together the front part of the Ford went under the frame of defendant’s truck. After the cars came to rest, neither of the cars was touching the northern abutment of the bridge and a person could walk beween the car and the abutment. Shortly after the accident, State police were there to direct traffic and there was plenty of room for cars to pass back and forth on the south side of the wrecked cars.

From the evidence adduced in court and from an examination of the photographs introduced in evidence, it seems to us that the collision was what would be commonly termed a head-on collision, that is, that the plaintiffs’ car was being driven nearly in a due west course, and the defendant’s truck was being driven due east. "Where and how each of the cars were being driven, the witnesses disagree in their testimony.

The defendant insists that the verdict of the jury is contrary to the manifest weight of the evidence. As before stated, it is the theory of the defendant that the plaintiffs were driving on the south side of the pavement in the westbound traffic, and that the defendant’s driver, in order to avoid a collision, drove his truck onto the north side of the pavement, or into the west lane of traffic. ■ This is the theory upon which the defendant submitted its case to the jury. The defendant’s instruction No. 27, is as follows:■ “The Court instructs the jury if you believe from the evidence that the plaintiff, Jacob A. Powell drove Susie Powell’s automobile on the south half of the cement roadway as he neared the bridge and that the driver of defendant’s truck turned it from the south side to the north side of the roadway in a reasonable effort to avoid a collision and then and there in so doing acted as a reasonable and prudent person would have acted under the same or similar circumstances, and without a wilful or wanton disregard for the safety of persons or property, and that at or about the same time the plaintiff, Jacob A. Powell, turned the Ford automobile to the north side of said pavement, and that the truck and the Ford automobile collided on the north side of the pavement, and if you further believe from the evidence that the conduct of the plaintiff, Jacob A. Powell, in so driving his said automobile, if shown, was careless and negligent and that it materially contributed to the accident, then and in that case it is your duty to find the defendant not guilty as to the plaintiff, Susie Powell.”

The court, by giving the above instruction, submitted the issues as desired by the defendant. The court also gave instruction for the plaintiffs submitting the case on their theory. Thus, a clear cut question of fact was presented to the jury for their conclusion. The jury saw fit to give more credence to the evidence submitted by the witnesses for the plaintiffs, and found in their favor. From an examination of the evidence, and exhibits admitted in evidence, we cannot say that the jury’s finding is against the manifest weight of the evidence.

It is argued by the defendant that the court erred in denying the motion of the defendant to dismiss the amended complaint, and refusing a motion in arrest of judgment because the complaint is insufficient. We are of the opinion that the complaint does state a good cause of action, and there was no error in the court overruling the motion of the defendant to dismiss the suit.

It is next insisted that the court erred in admitting incompetent, immaterial, improper, inflammatory and prejudicial evidence over the objection of the defendant and especially permitting the doctor to testify that a miscarriage was caused by the accident in question. The only doctor who testified was Edwin Gr. Barton, who qualified as a regular practicing physician and surgeon with 7 years’ practice. There was no effort made.to show that Doctor Barton was not a reputable and competent physician and surgeon. The doctor did not testify that the miscarriage was caused by the accident in question, but gave as his opinion that a miscarriage could have been caused by the injuries in question to Susie Powell. The abstract shows that an amendment was filed to the complaint as follows: ‘' That as a result of such injuries on the 6th day of October, 1938, the plaintiff, Susie Powell, had a miscarriage and by reason thereof, a blood transfusion became necessary and was suffered by and administered to her.” At the time the plaintiffs introduced their testimony, the above amendment was a part of the amended complaint. That this question was a controverted one by the pleadings, is disclosed by the statement in appellant’s brief, where we find the following: “It should be borne in mind that throughout this case, the defendant took the position that the accident in question could not and did not cause the alleged miscarriage. The issue was squarely raised by the pleadings, and the case was tried on that theory. ’ ’ The court did not err in admitting the evidence in question.

It is urged by the appellant that the court erred in permitting the doctor to testify that the nose of Susie Powell was broadened. We find no merit in this contention. Complaint is made that the court erred in admitting certain testimony of the doctor relative to the alleged permanence of the leg injury of Susie Powell. The doctor, in giving his testimony, did not state as a positive fact, as to the permanence of the injury of Susie Powell, but only gave his opinion based upon reasonable medical certainty of the results which might be expected relative to Mrs. Powell’s injuries. This, we think, is a correct rule of evidence.

In the trial court, a photograph of the plaintiff, Susie Powell, and another lady was introduced in evidence. The record discloses that this picture was taken about 12 years before the accident had happened. The picture was introduced solely for the purpose of showing the contour of Susie Powell’s nose prior to the time of the accident. While this picture was taken a long time before the accident, we cannot see how the jury would be prejudiced in any way by the introduction of this photograph. It is also insisted that the court erred in admitting in evidence certain X-rays without a proper foundation having been laid, and because the said X-rays contained extraneous matters and no proper explanation made, and were inflammatory and prejudicial. It is insisted in the printed argument in the brief that there is no testimony that the X-rays were accurate and correct X-rays and pictures of Susie Powell. In this, the appellant, is in error for the same are positively identified as shown by the record. It is also insisted as error to have Doctor Barton testify that Susie Powell suffered from retrograde amnesia. We find no merit in this assignment of error.

At the close of plaintiffs’ evidence and of all of the evidence, the defendant entered a motion requesting the court to direct a verdict in its favor against each of the plaintiffs, and charged that there was no evidence sustaining a charge of wilful and wanton misconduct on the part of the defendant. The undisputed evidence in the case shows that the defendant’s truck, just before and at the time of the collision, was being driven on the left-hand side of the paved highway and at the time of the collision, the plaintiffs’ car was also being driven in the same lane of traffic, in its proper one, while going in a westerly direction. If the jury believe the evidence of the plaintiffs, that is, that the plaintiffs were driving in their proper lane of traffic, at a reasonable rate of speed, and that the servant of defendant drove the defendant’s truck across the black line head on into the car of the plaintiffs, it would certainly be evidence sufficient to sustain a wilful and wanton count in the complaint. The court very properly refused to direct a verdict for the defendant on the wilful and wanton count. This was a question of fact for the jury to decide.

It is also contended that the court erred in refusing to direct a verdict in favor of the defendant, because the plaintiffs had failed to prove that they were in the exercise of due care and caution for their own safety at the time of the collision in question. This was also a question of fact' for the jury to decide, and there is no error in the court’s ruling on this assignment.

It is claimed by the appellants that, in the closing argument to the jury, the plaintiffs’ attorney read from the deposition of two witnesses, and this was error. The abstract and the record are not in accord relative to this matter, but an examination of the record discloses that plaintiffs’ counsel did not read from the deposition, but only from notes that he had taken of the testimony which was in the depositions. We find nothing prejudicial in the court’s allowing this to be done.

Objection is made in the closing argument of the attorney for plaintiff a reference to Mr. Cook being an associate of Mr. Heyl at the time the depositions were taken. This statement was later corrected. We do not see how a jury could be influenced one way or the other in regard to this statement.

The appellant has assigned error on the court’s refusing to give certain instructions tendered by the defendant. The first one complained of, is the one that states if the injury to the plaintiffs was accidental and neither the defendant nor the plaintiffs were negligent or guilty of wilful and wanton conduct, that then the jury should find the defendant not guilty. In some cases, no doubt this instruction would be proper, but not in the present case under the theory of either the plaintiffs or the defendant, so there is no error in refusing this instruction. The next instruction complained of is one that told the jury that they should give the same weight and consideration to the testimony contained in the depositions as they would to the witnesses if present. The true test appears to be that they should give the same fair consideration to the testimony contained in the depositions as they would if the witnesses were present and testified in open court. We think the instruction as tendered should have been refused. Complaint is made of plaintiffs’ given instruction which quotes the statute. This instruction does not direct a verdict. The rule is that where instructions do not direct a verdict, they should be considered with other given instructions and considered as a whole. If there was any error committed by the court in giving plaintiffs’ instruction No. 1, it is cured by defendant’s given instructions Nos. 27 and 29. We find no merit in defendant’s criticism of plaintiffs’ given instructions Nos. 2, 3, 4 and 5.

Plaintiffs ’ given instruction No. 6, told the jury what elements they had the right to take into consideration in assessing the damages of Susie Powell if they found in her favor. Under the authority of the Chicago City R. Co. v. Smith, 226 Ill. 178, we think this instruction properly states the law.

It is finally insisted that the verdicts in favor of Jacob A. Powell and Susie Powell are each excessive and against the manifest weight of the evidence. The evidence is uncontradicted" that, as the result of this collision, Susie Powell was seriously and very painfully injured; that she was in the hospital with a broken leg with an extension on her foot for several months; that she was in a cast for quite awhile; that while in this condition, she suffered a miscarriage; that her face and mouth were badly cut and damaged; that she had numerous other cuts on her head and face; that she suffered intense pain and that at the time of the trial she still suffered pain. Just what a reasonable allowance for such injury should be is somewhat problematical, but it was the province of the jury, after hearing this evidence, to say what would be a reasonable compensation for the damages she sustained from the injuries, pain and suffering she endured because of this collision. While $14,500 seems to us to be a liberal amount, we cannot say that this is manifestly against the weight of the evidence.

The evidence shows that Jacob A. Powell received no permanent injuries, but seems to be fully recovered. He was injured, and we cannot say that the jury’s allowance of $750 is unreasonable under the facts and circumstances, as shown by the evidence.

We find no reversible error in the case and the judgment of the trial court is affirmed.

Affirmed.