source: Caselaw Access Project

author: Mr. Presiding Justice Burke Mr. Justice Hebel

license: Public Domain

text:
    In re Estate of William R. Schultz, Deceased. Herbert C. Schultz and Marie P. Stenberger, Appellants, v. Chicago City Bank and Trust Company, Executor, et al., Appellees.
    Gen. No. 42,171.

      Hebel, J., dissenting.
    Heard in the third division of this court for the first district at the February term, 1942.
    Opinion filed December 9, 1942.
    Hummer, Van Ness & Yowell, of Chicago, for appellants ; John J. Yowell and Herbert G. Bantz, both of Chicago, of counsel.
    Rathje, Hinckley, Barnard & Kulp, of Chicago, for appellees; Francis E. Hinckley and Herbert C. Strauschild, both of Chicago, of counsel.
   Rehearing Opinion.

Mr. Presiding Justice Burke

delivered the opinion of the court.

Toward the end of 1936 William C. Schultz, then over 67 years of age, retired from his position as a clerk at the Chicago City Bank and Trust Company, 815 W. 63rd street, Chicago, after having worked for this bank and its predecessor for 19 years. He had been divorced for more than 20 years. He had two children, Herbert C. Schultz and Marie P. Sternberger, from whom he was estranged. He had lived alone in a rooming house and for 10 years he had lived in a small room at the Englewood Y. M. C. A. He did not have many friends or associate with many people and seemed to stay to himself. He enjoyed books and music. Upon his retirement the bank employees gave a dinner for him and presented him with a token of esteem. In the Spring of 1937 he took a trip to the west coast, having given up his room at the Y. M. C. A., and placed his personal effects in the home of his brother, Herman Schultz, 3008 S. Canal street, Chicago. These consisted of his papers, clothes, pictures, personal letters, a violin, his feather mattress and all other personal effects except what he carried in his suitcase. He considered his feather bed indispensible to his comfort. When he went west, he had no definite destination. His brother Herman died on July 2,1937. William came from California to Chicago to attend the funeral. After the funeral he helped his siste'r-in-law, Pauline Schultz, to straighten out her affairs. He was born in Chicago and up to the time of making the trip to the west coast, had spent all of his life in that city. On July 16,1937, while in Chicago, he made a will, describing himself as “William B. Schultz of the City of Chicago, County of Cook and State of Illinois. ’ ’ The third clause of the will reads:

“My children, Marie and Herbert, have not seen fit to visit me or to concern themselves- about me for the last twenty years. I have therefore, come to the conclusion that they do not wish to have anything to do with me. It is, therefore, my express intention to disinherit them, and accordingly I have made no provision for them. They are not to participate in the distribution of my estate.” He nominated the Chicago Bank and Trust Company as executor. About the latter part of July 1937, he returned to California. He died at the El Bey Hotel in Los Angeles, California, on December 12, 1939. He had lived in California about 2% years. The body was removed to Chicago, where it was interred. The will was admitted to probate by the probate court of Cook county and the bank qualified as executor. The will bequeathed the entire estate to the bank as trustee, and directed the payment to Pauline Schultz of $400 a year for her lifetime out of the income; directed that after her death the trustee distribute the entire trust estate then in its possession, together with all accumulations, equally between the Addison Manual Training School for Boys and the Addison Industrial School for Girls. These are Illinois corporations not for profit. The inventory filed by the executor showed there was no. real estate and that the estate consisted of personal property. On June 17, 1941, Herbert C. Schultz and Marie P. Sternberger, being the son and daughter and the only heirs-at-law and next of kin of William B. Schultz, deceased, filed their petition in the probate court of Cook county, declaring that at the time their father made his will he was a resident, of Chicago, Hlinois; that shortly thereafter he moved to the State of California with the intention of making that State his permanent and only domicile; that he became a resident of California and made that State his permanent and only domicile, and continued to reside and be domiciled there until his death. The petition recited the provision of the Probate Act of California to the effect that no more than one third of any estate may be bequeathed or devised to any charitable or benevolent society or corporation, or in trust for charitable uses by a testator who leaves a spouse, brother, sister, nephew, niece or descendant or ancestor surviving him, who, under the will or the laws of succession would otherwise have taken the property so bequeathed or devised, and that if such devises and bequests shall exceed one third of such estate then a pro-rata reduction shall be made so as to reduce the aggregate thereof to one third of the estate; and that all property bequeathed or devised contrary to the provisions of this law shall go to the descendants, etc., if and to the extent that they would have taken the property but for such devises or legacies. Petitioners prayed that California be declared to be the domicile of William Schultz, deceased ; that distribution of the estate be made in accordance with the law of that State, and that the bequests to the Training School and Industrial School be reduced so as not to exceed one third of the estate. The executor, the .Training School and the Industrial School answered, and denied that Schultz moved to the State óf California with the intention of making that State his domicile, denied that he became a resident of California or made it his permanent residence or domicile, or that he was domiciled there at any time. The issue thus joined was tried by the probate court, which entered an order finding that at the time Schultz made his will, and for many years before, he had been a resident of Cook county, Illinois; that he had left Illinois on one occasion and returned; that thereafter he left the State and traveled to various places including Vancouver, B. C., San Francisco, California, Long Beach, California and Los Angeles, California, and that if he intended to make California his domicile or become a resident of that State, he never consummated such intention and did not become a resident of that State; that he did not at any time abandon his domicile in Illinois, and that he died domiciled in and a resident of Illinois. The children appealed to the circuit court of Cook county, where the matter was again tried. That court found that Schultz was at the time of his death a resident of and domiciled in the State of Illinois, and that the distribution of his estate was subject to the laws of Illinois and as provided by his last will. The circuit court affirmed the judgment of .the probate court and denied the prayer of the petition. The children prosecute this appeal for the purpose of reversing the judgments of the circuit and probate courts.

The first question presented is whether the testator died domiciled in California, as contended by petitioners, or in Illinois, as contended by respondents. If he died domiciled in California, petitioners ’ position is that they may not be disinherited in favor of the schools to the extent of more than one third of the estate. We have read the cases .cited by the parties on the subject of domicile, and find they are in substantial agreement. The parties disagree as to the application of these principles to the facts of the case. As a determination of the case depends in a large measure upon the facts, we have studied the transcript of the testimony and the exhibits closely. When William Schultz retired, he told William E. Crow, an attorney and one of his closest friends, that he would take a bus and was going to travel to the west coast and ride as far as he could each day until he got tired, and then he would stop off and look around at the scenery, and when he found a place he liked he was going to stay there. In bidding him goodbye, Crow told him that if he did not like it there that he would tell him about some places in Florida. Schultz said he would keep the suggestion in mind, and that when he came back he would have a talk with Crow. In April 1937, while on his way west, Schultz visited his cousin, Henrietta Kolbenschlag in St. Louis. He told her he did not know how long he was going to stay and whether he would make his permanent home in the west, or how he would like it, as he had never been there and did not know how he would find things. At the time of the death of his brother Herman in July 1937, he returned to Chicago. It was then that he made his will. The children concede that at this time William Schultz was a resident of and domiciled in Chicago. While in Chicago in July 1937, Crow saw Schultz in a restaurant and asked him where he was living. Schultz answered that he was living in Long Beach, California, that he liked it so well that he did not think he would come back, that he would stay out in California since living conditions were reasonable and he met a great many people of his own age, having his taste for music, and that he was going to stay there. According to the testimony of Crow, Schultz also stated that he felt better in California than he felt in Chicago and that the climate agreed with him there. On this same trip to Chicago he told his cousin, Florence Much, whom he visited at her home in Riverside, Illinois that his going to California was to get away from the cold winters in Chicago. After the funeral of his brother and the making of his will, he returned to California. On his second trip to the west he wrote a postal card to his sister-in-law, Pauline Schultz, from Vancouver, B. C., on September 13, 1937, stating that he was there for a week. The next heard from him was a postal card from San Francisco dated November 1, 1937, stating that he would be there for a month, and that he had stopped at Seattle, Tacoma, Portland, Med-ford, Sacramento and Oakland. In both of these communications he noted that the weather was fine and that he was feeling fine. On December 7,1937 he registered at the Hotel Cecil in Los Angeles, California, and stated upon the registration card that his residence was Chicago, Illinois. In January and February 1938 he communicated with the bank in Chicago with reference to some of his securities which had been placed in the safekeeping department of the bank at the time he left. He asked the bank to keep track of his income. His property consisted exclusively of personalty, a large part of which was notes secured by mortgages on real estate in Chicago, and he had opened a safekeeping account with his former employer, Chicago City Bank and Trust Company, 815 W. 63rd street, Chicago, the trust department of which serviced the mortgages. On January 28, 1938 O. L. Blake of the trust department wrote Schultz, advising him that an extension of one of his mortgages had been requested. On February 2, 1938 Schultz replied on the back of the letter agreeing to an extension for 3 years, and stated: “I had fine weather up till now but it rains about every other day but I still got away from ice and snow.” On February 12, 1938 he replied on the back of another letter from Blake and stated: “February has turned out to be one rain after another. As I have no overcoat with me I had to stick around the hotel.” On February 21, 1938 Schultz wrote Blake: “The good old summer time is back again. Was down to the beach yesterday. People sunning themselves in bathing suits. ’ ’ On May 7,1938, he registered at the Hotel Rolston, 332 American avenue, Long Beach, California, giving his residence as 815 W. 63rd street, Chicago. This was the address of the bank. Schultz had never lived there. On May 10, 1938 he sent a postal card to his sister-in-law saying: “Going to spend another year in California. Here for the summer at the Hotel Rolston. 332 American Avenue. Long: Beach, California.” Six days later he wrote a note to the same addressee saying: “I am staying in California another year. I will be here for some months. Will keep you posted if I move . . . Weather here is cooler than Los Angeles.” He sent Pauline Schultz money for the care of the cemetery lot. On June 4, 1938, he sent a postal card to his cousin, Florence Much, from the same hotel in Long Beach, California, stating: “Expect to stay in California another year. Here for the summer. Write me if anything happens. ’ ’ On November 7,1938 he registered for a room at $18 per month at the Hotel El Rey in Los Angeles. In registering at this hotel he gave his address as “Care 815 West 63rd St., Chicago, Ill.” Pauline Schultz testified that William Schultz lived at the Hotel El Rey before coming to Chicago for the funeral of her husband. On November 23,1938 Schultz wrote his sister-in-law to mail him his brown suit with both pants. He inclosed $1 and said: “If it costs more will pay yon when I see yon next summer. Feeling fine.” On December 14,1938 he wrote Pauline from Los Angeles, acknowledging receipt of the suit, and said: “Feeling fine. Had a week of hot weather, 85° to 92°.” On December 27, 1938 he wrote Florence Much from the same hotel: “I got back here November 7th. Had a swell summer in Long Beach. Came here because I thought it would be better in winter, . . . like June in Chicago. Feeling fine, outdoors every day.” The following day he sent a New Year’s card to his sister-in-law wishing her a Happy 1939. On May 6,1939 he stated on a postal card to his sister-in-law : “I am sick. In case anything happens I told them to notify you.’’ On May 22,1939 he wrote her: “I was terribly sick. Doctor said I had a growth in my stomach. I am a little better but awful weak. I am coming back to Chicago as soon as I am able to travel, maybe two or three weeks,” and in a postscript said: “In case anything should happen to me, notify the bank.” On June 24,1939 he wrote to Blake of the Chicago City Bank and Trust Company: “I am very sick and I think I will be three or four months in picking up my strength so I don’t know when I will be back in Chicago. I am nothing but sldn and bones and very weak. I have a doctor now who is doing me some good but at 70 I can’t expect too much.” On August 23, 1939 his cousin, Henrietta Kolbenschlag of St. Louis, and her husband visited Schultz at the El Bey Hotel in Los Angeles. He was in the lobby of the hotel. She spent the whole afternoon with him and had a long conversation. She testified that she had no interest in the law suit. She testified that she asked Schultz to come back to Chicago because he was in very poor health, but he said he liked the country out there so well and the climate agreed with him so he thought he would stay there; that she asked him to come back home, thinking he should be with relatives, or friends ; but “he said he felt that was his home and they were very good to him at the hotel.” Upon her return to St. Louis she wrote him, inclosing a self-addressed envelope for his reply. He replied on September 30,1939 as follows:

“Dear Etta and Ben: Glad to hear you got home safe. The terrible hot spell pulled me down again then the last month I have been passing stones had to take enemas to get them out but the weather is nice now and I am-hopeful that I will make up for lost time. Got my teeth in and they are fine. I can eat soft cooked meat, gums are not quite hard enough but I have no pain. I tried writing with pencil as it is better than the pens they got here. I am glad to hear from people but you know how lazy I am in answering so drop me a card once in a while. Will close with best regards to John. Again thanks for writing.”

On October 3, 1939 he wrote Mrs. Much' on the Hotel El Bey stationery as follows:

“I am slow in answering your letter but thought I might have little more cheerful news about myself. I am no better, very weak. In August had 4 days in bed with pleurisy that pulled me down, before that the doctor insisted in having my teeth pulled. I have false teeth now, that pulled me down. Last month I passed stones had to use enemas to get them out. Now I am hopeful that my troubles are over that I can start to build up. I can eat fairly well. I forgot to tell you we had a week of hot weather 107° one day that did me no good. I am still hoping for the best. Am staying here for the winter. Will close now with best regards to everybody.”

On October 6, 1939, he wrote his sister-in-law, Pauline Schultz:

“Lena: I am not much better still very weak so I am staying here this winter so please send me the new overcoat, mail parcel post insure for $20 enclosed is $1 for expense it is the fuzzy one, black, for the last month I have been breaking in my teeth I can eat pretty good so now I am hopeful that I pick up. I had a hard time with my bowels. Had stones passing through had to use enemas to get them out. Had a week of terrible hot weather that pulled me down some. I am sure glad to hear you are well for I never appreciated good health more than now when I am sick. Well will close now with best regards to everybody.”

The last statement of Schultz, so far as the record discloses, is a postal card to Pauline Schultz dated October 21, 1939, reading: “I got the overcoat. Thanks very much. Am a little better, not much. Regards to everybody.” He had a small balance in a savings account in a Los Angeles bank, which was released by the inheritance tax department of California and remitted to the executor. He filed his income tax returns in 1937, 1938 and 1939 (for 1936, 1937 and 1938 respectively) with the Collector of Internal Revenue in Chicago and paid the tax by his checks drawn on the Chicago City Bank and Trust Company. On these returns he gave his address as Los Angeles, Cal. The record is silent as to whether he voted in California, nor does the record show whether or not he registered or voted in Illinois. The record is also silent as to whether he acquired any property in California. He apparently did not acquire any property or engage in any business there. It .appears that he was retired and living from the income derived from his investments. The record does not show whether he affiliated with any social organizations or church in California, or as to whether he paid taxes there. At no time did he send for his' books, violin, papers or the feather bed, which he prized so highly, all of which articles still remain in the custody of Pauline Schultz. He left his money on deposit with the Chicago City Bank and Trust Company. The safekeeping account in which he placed his securities is a service offered by the bank to' customers for the temporary custody of securities which they might want to leave while on a vacation or a trip abroad. Such service was not of a permanent nature. It was an agency. He opened this safekeeping account when he left Chicago. The bank’s duties were to collect interest coupons and dividends and deposit them in accordance with his instructions.

The common-law rule that personal estate follows the person of its owner, and is distributed pursuant to the law of his domicile at the time of his death, is recognized as the law of this State. (Cooper v. Beers, 143 Ill. 25, 31.) Distribution must be made in accordance with the law of the domicile of the testator or of the intestate, as the case may be. (Dickinson v. Belden, 268 Ill. 105,109.) In determining where Schultz was domiciled at the time of his death, we should keep in mind the definition of this word. The word ‘1 domicile ’ ’ is derived from the latin ‘1 domus ’ ’ meaning a home or dwelling house. Domicile is the legal conception of home and the term “home” is frequently used in defining or describing the legal concept of domicile. Domicile is the relation which the law creates between an individual and a particular locality or country. What has been said to be the most comprehensive and correct definition which could be given is that in a strict legal sense, the domicile of a person is the place where he has his true, fixed permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning. Domicile has also been defined as that place in which a person’s habitation is fixed, without any present intention of removing therefrom, and that place is properly the domicile of a person in which he has voluntarily fixed his abode, or habitation, not for a mere special or temporary purpose, but with a present intention of making it his permanent home. Domicile has been defined in terms of its elements as residence at a particular place, accompanied by an intention, either positive or presumptive, to remain there permanently or for an indefinite or unlimited length of time. While the terms “domicile” and “residence” are frequently used synonymously, they are not, when accurately and precisely used, convertible terms. That there is a difference in meaning between ‘ ‘ domicile ’ ’ and ‘ ‘ residence ’ ’ is shown by the fact that a person may have his residence in one place and his domicile in another. Whether the term “residence” used in a statute, will be construed as having the meaning of ‘ ‘ domicile, ’ ’ or the term ‘ ‘ domicile ’ ’ construed as “residence” depends upon the purpose of the statute and the nature of the subject matter, as well as the context in which the term is used. It is a settled principle that every person must have a domicile somewhere. The common statement is that a person can have only one domicile at any given time. Domicile may be divided into domicile of origin, domicile of choice and domicile by operation of law. A person’s domicile of origin is the domicile of his parents, the head of his family, or the person on whom he is legally dependent at the time of his birth. It is generally but not necessarily the place of his birth. A domicile of choice is the place which the person has chosen for himself to displace his previous domicile, but is based on the intention of the person. Domicile by operation of law is that domicile which the law attributes to a person, independently of his own intention or actual residence. It ordinarily results from legal domestic relations, as that of the wife arising from marriage. (28 C. J. S. Domicile, sec. 1.) In the case of Kreitz v. Behrensmeyer, 125 Ill. 141, our Supreme Court said (195):

“We have frequently held, that when a party leaves his residence, or acquires a new one, it is the intention with which he does so that is to control. Hence the shortest absence, if at the time intended as a permanent abandonment, is sufficient, although the party may soon afterwards change his intention; while on the other hand, an absence for months, or even years, if all the while intended as a mere temporary absence for some temporary purpose, to be followed by a resumption of the fórmer residence, will not be an abandonment. On the question of intention, the declaration of the party, though admissible, is not necessarily conclusive, because it may be disproved by his acts, — as thus: If a party were to remove his family to a particular district, there build and furnish them a home, keep his property there, return there constantly, as leisure allowed, and remain there with his family during sickness and unemployed time, this would constitute his residence, notwithstanding he might be employed in labor in another district, and claim that to be his residence, (The People v. Holden, 28 Cal. 124), for, on questions of domicile, less weight is given to the party’s declaration than to his acts.”

Petitioners, asserting that William Schultz died domiciled in California, assumed the burden of proof, and maintain that they met the burden when they established that Schultz actually resided in California and died there. They argue that they proved that Schultz went to California the second time intending to stay there, and that shortly before his death he showed that he intended it to be his home. The United States Supreme Court recently held in District of Columbia v. Murphy, 314 U. S. 441, 62 Sup. Ct. 303, that “the place where a man lives is properly taken to be his domicile until facts adduced establish the contrary.” It there followed the leading case of Ennis v. Smith, 55 U. S. 400, involving the domicile of the Polish patriot, Kosciusko. General Kosciusko, born in Poland, served with distinction in the American Army in the Revolutionary War and later lived in France. He died leaving assets in this country undisposed of and it became important to determine the jurisdiction in which he was domiciled. The court said (423):

“Where a person lives, is taken prima facie to be his domicile, until other facts establish the contrary. . . . But when there is a removal, unless it can be shown or inferred from circumstances that it was for some particular purpose, expected to be only of a temporary nature, or in the exercise of some particular profession, office or calling, it does change the domicile. The result is, that the place of residence is prima facie the domicile, unless there be some motive for that residence not inconsistent with a clearly established intention to retain a permanent residence in another place.”

The court further declared that the burden of proof is upon him who asserts that the domicile of origin has been changed, but where a person lives is taken prima facie to be his domicile and where that is different from the domicile of origin, this casts upon him who denies the domicile of choice the burden of disproving it. Section 10551 of the California Health and Safety Code provides that a copy of the record of a death, when properly certified by the State or local registrar to have been registered within the period of one year from the date of the event is prima facie evidence in all courts of the facts stated therein. Section 10375 of the same code prescribes the contents of a death certificate. The certificate of the death of William Schultz, certified under the Great Seal of the State by the Secretary of State of California who is charged by section 407 of the Political Code of California with the custody of the Great Seal, shows that the decedent’s residence was 511 E. 6th street, El Rey Hotel, Los Angeles, California, and that the length of his residence in the city where he died was two years and five months, and that the length of his residence in California was the same. The California statute is similar to section 20 of our Public Health Act (sec. 55, ch. 111½, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 12.23]) which provides that any such certification of a death, when properly certified to by the State Board of Health or the local registrar or the county clerk, shall be prima facie evidence in all courts and places of

the facts therein stated. Respondents cite Howard v. Illinois Trust & Savings Bank, 189 Ill. 568; Henninger v. Inter-Ocean Casualty Co., 217 Ill. App. 542; Spiegel’s House Furnishing Co. v. Industrial Commission, 288 Ill. 422, and argue that the death certificate proves no more than the fact that Schultz died at 511 E. 6th street, Los Angeles, California on December 12, 1939, and that it cannot be given any greater effect. In the Howard case the court held that it was error to admit a birth certificate for the purpose of proving that a child was the second child of the mother. The court said (572):

“Registers of births, deaths and marriages made pursuant to the statute and within its requirements are admissible in evidence to prove the facts recorded. On account of the credit due to the officials empowered to record the facts in the public interest, such registers are evidence of the facts without the usual tests of truth.”

It appears that the death certificate prescribed by the laws of California and Illinois follow the Federal Census Bureau’s standard form for a death certificate. Section 7 of the Public Health Act of Illinois (see. 42, ch. 111½, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 12.07]) provides that “the certificate of death shall contain at least the items of the Standard Certificate of Death, approved and adopted by the United States Bureau of the Census. The personal particulars shall be authenticated by the signature and address of the informant who shall be the nearest of Hn or other competent person acquainted with the facts. The medical certificate shall be made and signed by the legally qualified physician, if any, last in attendance, or by the coroner. ’ ’ The standard form for death certificate was used in the case of William Schultz, which shows the place of his death as 511 E. 6th street, El Rey Hotel, Los Angeles, California ; his residence at the same place; that he was divorced ; that the name of his divorced, wife was Anna Ansell; that he was 70 years, 6 months and 2 days old; that he was a bank clerk; that his place of birth was Chicago ; that his father’s name was Ernest Schultz and his mother’s name was Julia Dryer; that both parents were born in Germany; that the body was removed to Chicago for burial and that Mrs. Pauline Schultz, 3008 S. Canal street, Chicago, was the informant. Apparently, Pauline Schultz gave the information by long distance telephone. In the Henninger case the death certificate was admitted in evidence. The only thing stricken from the certificate was the words “made by garter buckle July 12, ’ ’ there being no evidence that the deceased ever wore a garter. This statement constituted a conclusion and also a matter not required by the statute to be in the death certificate. The Spiegel’s case involved the admission of the findings of the verdict of a coroner’s jury. The Supreme Court held that the coroner’s verdict was not admissible to establish the cause of death in a proceeding under the Workmens’ Compensation Act. It will be observed that the death certificate is divided into two parts, the part giving the personal particulars required' ta be signed by the informant, together with his or her address, and the part giving information as to the cause of death, etc., which is required to be signed by the “legally qualified physician, if any, last in attendance, or by the coroner.” This is in accordance with section 7 of the Public Health Act of Illinois (sec. 42, ch. 111½, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Arm. 12.07].) It appears that the California law is the same as the law of Illinois on this subject. The death certificate in the instant case purports to be sigped by Mrs. Pauline Schultz, 3008 S. Canal street, Chicago, who is shown as the informant as to the personal particulars. Mrs. Schultz testified that a short time after "William died, she (in Chicago) had a telephone conversation with the funeral director in Los Angeles. The record is silent as to what was said in the conversation. In the trial she was not asked whether she told the funeral director that William, had resided in Los Angeles for two years and five months previous to his death, and the funeral director did not testify. Apparently, he took the liberty of signing Mrs. Schultz’s name as the informant. In the telephone conversation she undoubtedly directed that the body be sent to Chicago. In the state of the record we would not be justified in finding^ that Mrs. Schultz signed the death certificate, or that she stated in the telephone conversation that William had been a resident of Los Angeles for two years and five months. It is clear that section 10551 of the California Health and Safety Code, making a properly certified record of a death prima facie evidence in all courts of the facts therein stated, contemplates that the persons giving the information shall have some knowledge of the facts stated in the certificate. The personal particulars are required to be authenticated by the signature and address of the informant, who shall be the nearest of kin, or other competent person acquainted with the facts, and the medical certificate shall be made and signed by the legally qualified physician, if any, last in attendance, or by the coroner. For these reasons we uphold the contention of appellants that the death certificate proves no more than the fact that Schultz died at 511 E. 6th street, Los Angeles, California on December 12, 1939, and that the cause of his death was as stated above the signature of the physician in attendance. In considering the case, we are ignoring the personal data supposedly supplied by Mrs. Pauline Schultz.

The evidence shows that when Schultz left Illinois in the Spring of 1937, he intended to travel to the west coast and to stop off at various places and look around at the scenery, and that when he found a place he liked he was going to stay there. When he returned for his brother’s funeral he told his friend Crow that he was living in Long Beach, California, and that he liked it so well he did not think he would come back; that he would stay in California; that the prices and living conditions were reasonable; that he met a great many people of his own age, having his taste for music, that he enjoyed the concerts at Long Beach and that he was going to stay there. He also said he felt well in California and that the climate agreed with him. The evidence also shows that when he returned to California in the Summer of 1937, he intended to remain there. He had given up his place of abode in the Y. M. C. A. where he had lived for 10 years. On arriving in California he lived there continuously for more than two years and was in his third year, when he died. The weather meant much to him. He told his cousin Florence Much that his going to California was to get away from the cold winters. He found he could live in a rented room in Los Angeles as cheaply as he could in Chicago. The testimony of his cousin Henrietta Kolbenschlag when she and her husband visited him about four months before his death, is uncontradicted. She testified that he liked the country out there so well and the climate agreed with him so that he thought he would stay there. He also told her (referring to California) that that was his home and that they were very good to him at the hotel. It is apparent that he did not go to California for a temporary purpose, or to carry out a commission, nor did he go to receive medical attention. He had no family fireside or ties of affection to bring him back to Chicago. He retired from business and had enough income to live without working. He liked the California climate and complained of the Chicago winters. As tending to show that he was not domiciled in California, we have considered that in registering at hotels he gave his address as Chicago, and that he also wrote postal cards and letters indicating an, intention to return to Chicago. The notes which he sent to his relatives and friends in which he disclosed an intention to return to Chicago show in our opinion that he intended to visit Chicago. The evidence is convincing to us that he liked southern California, and his action in living there continuously for more than two years is very strong evidence that he intended that State to be his permanent home. That fact, coupled with the statement that he made to Mr. Crow and his cousin Florence Much while in Chicago, and to his cousin Henrietta Kolbenschlag in Los Angeles, together with the fact that he gave up his room at the Y. M. C. A., convinces us that the petitioners have established by a preponderance of the evidence that at the time of his death, Schultz was domiciled in California. When he first visited California in the Spring of 1937, he went to look around. Apparently, he was very much impressed by this visit and made up his mind to live there. He so stated while in Chicago, following the death of his brother. He carried out that intention by returning there. He did not come back to Chicago. His statements and his actions clearly show that he intended to remain permanently in California. After having made his permanent residence in California, that State became his place of domicile notwithstanding he may have entertained a floating intention to return to his former domicile in Chicago at some future period. In Gilbert v. David, 235 U. S. 561, the court said (569):

“If a person has actually removed to another place, with an intention of remaining there for an indefinite time, and as a place of-fixed present domicile, it is to be deemed his place of domicile, notwithstanding he may entertain a floating intention to return at some future period.”

We have also considered the fact that Schultz filed his income tax returns with the Collector of Internal Revenue at Chicago. This is counter-balanced by the fact that on these returns he gave his address as Los Angeles, California. We have also considered that he opened a safe keeping account with the bank where he had been employed, and that this is usually of a ternporary nature. At the time he opened the account he intended to go west and determine whether he liked the country. His assets consisted largely of mortgages on real estate in Chicago and vicinity, and it was quite natural that he should select a Chicago bank in which he had confidence to service these mortgages. We have considered that he moved his personal belongings, such as his papers, clothing, violin and his feather bed to the home of his sister-in-law. Later, however, he sent for the clothes he needed. Despite the fact that the evidence shows that his feather bed was indispensible to his comfort, he did live in California for over two years without it, and there is not a scintilla of evidence that he suffered any inconvenience without it. He liked to live in Long Beach in the summer and in Los Angeles in winter, and he may not have wished to move the feather bed back and forth between these two points. An examination of the record satisfies us that the petitioners have maintained the burden which they assumed in proving that at the time of his death, William Schultz was domiciled in California, and we so find.

The executor states that the effect of an order admitting a will to probate is to transfer the personal estate as therein provided, and the situs is where the instrument evidencing the indebtedness, stock or chose in action happens to be, and quotes from section 53 of the Administration of Estates Act of Illinois (sec. 205, ch. 3, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 110.302]) that every will when admitted to probate as provided by that act is effective to transfer the real and personal estate of the testator devised and bequeathed therein. The executor asks that since there was no appeal from the order admitting the will to probate, it is final and binding upon all and the title to the property became vested in the bank as trustee for the purpose established by the will, and points out that section 55 of the same act (sec. 207 [Jones Ill. Stats. Ann. 110.304]) provides that the situs of intangible personal estate of nonresidents is where the instrument evidencing the debt, obligation or chose in action happens to be, and that Mr. Schultz’s entire estate consisted of money in the bank in Chicago, mortgages, bonds and stock, all of which were in the custody of the bank continuously up to the time of his death and are still there. In support of this contention the executor discusses the case of Johns Hopkins University v. Uhrig, 145 Md. 114, 125 Atl. 606. In our opinion that case is not applicable to the factual situation before us. It was decided under a Maryland statute, which provided that every will executed out of the State should have the same force and effect as if executed in the mode required by the laws of Maryland, and that “if the testator was originally domiciled in Maryland, although at the time of making the will or at the time of his death he may be domiciled elsewhere, the will should be admitted to probate and when so admitted then it should be governed by and construed and interpreted according to the law of Maryland without regard to the lex domicilii, unless the testator shall expressly declare a contrary intention.” In their reply brief and in the oral argument petitioners (the children) pointed out that in August 1940, at the time they filed their petition in the probate court, they also filed a complaint against respondents in the circuit court, in which they alleged that on February 26,1940, and within nine months of the date of the filing of said complaint, the probate court of Cook county admitted to probate the last will and testament of William It. Schultz, deceased, and issued letters testamentary to the bank, and setting up substantially the same facts and praying substantially the same relief as prayed in the probate court; that respondents moved to dismiss the circuit court suit on the ground that the bank was the duly appointed executor, and was acting as such in the probate court; that “there is now pending and undisposed of a petition in the Probate Court entitled in the same estate and filed by plaintiffs herein on or about the 27th day of August, 1940, in and by which they set forth substantially the same matters alleged in their complaint herein, and pray substantially the same relief as they prayed in their complaint in this cause ’ ’; and further that “under the laws and statutes of the State of Illinois the Probate Court has exclusive jurisdiction of the probate of wills and the administration and distribution of the estates of deceased persons, and there is, therefore, another action pending between the same parties for the same cause”; that after the entry of the judgment involved in the instant appeal, respondents filed an additional ground for dismissal of the circuit court suit, namely, that “the matters set forth in the complaint in this cause have-been finally adjudicated and determined between the parties hereto by a court of competent jurisdiction of the parties and subject matter”; and that on December 26, 1941 the circuit court dismissed the cause in conformity with that motion. The record before us shows that petitioners and respondents submitted the case to the probate and circuit courts on the issue as to whether William R. Schultz was domiciled in California at the time of his death. We are of the opinion that the provision of section 53 (sec. 205) of the Administration of Estates Act that every will admitted to probate is effective to transfer the real and personal estate of the testator devised and bequeathed therein, contemplates that such transfer is subject to change in accordance with any appropriate judgment thereafter entered in. a court of competent jurisdiction. In considering this phase of the case, it is well to remember that petitioners do not contend that testator was of unsound mind or that undue influence was exercised when the will was made, nor that the will was not executed with the formalities required by law. Hence, appealing from the order of the probate court admitting the will to probate, would not decide the issues that were raised by the petition and answer. No distribution has been made by the bank as executor to the bank as trustee. It is obvious that thé parties recognized the jurisdiction of the probate court to enter an appropriate order respecting the distribution of the estate in accordance with the will and the law of the domicile of the testator.

Finally, respondents maintain that petitioners could not take any part of the estate under any circumstances except by intestacy. They point out that section 41, Article II of the Probate Act of California provides that all property bequeathed or devised contrary to the provisions of that section, shall go to the spouse, brother, sister, nephew, niece, descendant or ancestor of the testator if and to the extent that they would have taken the property but for such devises or legacies, and emphasize the words “if and to the extent that they would have taken said property as aforesaid but for such devises or legacies. ’ ’ They point out and we agree that Schultz manifested a clear intention not to leave any part of his estate to petitioners. Respondents insist that it is thus apparent that petitioners would not have taken any part of the estate under any circumstances, and support their argument by citing In re Dwyer’s Estate, 159 Cal. 680, 115 Pac. 242. We have read that case and do not consider it applicable to the facts before us. In the case of In re Layton’s Estate, 217 Cal. 451, 19 P. (2d) 793, the Supreme Court of California had under consideration the provisions of the Probate Code of California relating to charitable bequests. The decedent died in Los Angeles and his will was admitted to probate there. The daughter of the decedent was expressly disinherited and it was provided in the will that the portion of the testator’s estate that might be held to have been devised in contravention of law should go to his living heirs-at-law, excluding his daughter. The wife claimed that since she was one of the living heirs and that the daughter was excluded, she, the wife, should have the entire estate above the one third to which the charitable institution was entitled, but the court construed the will to mean his collateral heirs and treated his daughter who had been disinherited as if she did not exist and he had died leaving only his wife and collaterals. It will be noted, however, that the Layton will not only expressly disinherited his daughter, but provided that any portion of his estate that might be held to have been bequeathed in contravention of law should go to his living heirs-at-law, excluding his daughter. Obviously, if the charitable bequests were in contravention of law, there was no intestacy so as to let the daughter in, but a valid bequest to the heirs-at-law other than the daughter. In the instant case, however, no such provision is made, and as there is a partial failure of the gift to charities, there is an intestacy as to such part. We agree that such part must go in accordance with the law of inheritance of the State of California.

In their petition for rehearing appellees state that “we overlooked the fact that Pauline Schultz, the life beneficiary, is entitled to an annuity of $400 a year as long as she lives, and that the distribution intended by the testator was to take effect upon her death. Consequently, the entire estate was not bequeathed to the schools. If two-thirds of the- estate is to descend and be distributed as intestate, then the schools will receive less than one-third and their shares will be diminished by the payment of the annuity to the life beneficiary as long as she may live. . . . Under the views expressed by the court in its opinion and its interpretation of the law of the State of California the schools are entitled to receive no less than one-third of the estate and under the remanding order their share will be substantially lesis than one-third of the estate, and maybe nothing at all. ... We think that under the views expressed by the court in its opinion the schools are entitled to one-third of the estate and that the present value of one-third of the estate may be substantially more than the amount remaining in the tru-st at the time of the death of the life beneficiary.” In their answer to the petition for rehearing, appellants state that “we agree that the charities should receive one-third of the estate, without reduction by payments to the annuitant. She is now 76 years old. Her right to the $400 annuity has never been questioned. The value of the estate is thirty odd thousand dollars. If necessary to avoid any possibility that the remanding order might be construed in a manner contrary to the wishes of all parties, we join in the prayer that the court modify its opinion to the extent that the remanding order will be effective to accomplish the results contemplated in the opinion of the court. ... We agree that the remanding directions should require that two-thirds of the estate less an amount sufficient to provide for payment of the annuity to Pauline Schultz without reducing the one-third to be paid to the charities, shall descend and be distributed as intestate estate in accordance with the opinion of the court.” It will be noted that the will provides that “the trustee, out of the net income of the trust estate, shall pay to Pauline Schultz, widow of my deceased brother, Herman Schultz, the sum of $400 a year in convenient installments, and such payments of $400 a year shall continue for and during the lifetime of the said Pauline Schultz.” The will further provides that “after the death of Pauline Schultz, the trustee shall pay, distribute and deliver the entire trust estate then in its possession, together with any and all accumulations thereon, to the following corporations in the following proportions, to wit: to Addison Manual Training School for Boys, an Illinois corporation not for profit, a one-half part thereof, and to Addison Industrial School for Girls, an Illinois corporation not for profit, a one-half part thereof.” In our previous opinion in reversing the judgment of the circuit court, we remanded with directions to enter an order and judgment that at the time of his death William R. Schultz was domiciled in California; that the bequest to the trustee of one half of the estate to the Addison Manual Training School for Boys and one half to the Addison Industrial School for Girls be so reduced that the aggregate thereof shall not exceed one third of the entire estate, as required by the laws of California; that two thirds of the estate shall descend and be distributed as intestate estate in^ accordance with the laws of California, and for further proceedings not inconsistent with this opinion. The reason we did not give any directions relative to the annuity to Pauline Schultz was that there was no dispute between the parties as to her rights. Consequently, the direction “for further proceedings not inconsistent with this opinion” gave full authority to the circuit court to enter appropriate orders providing for the annuity to Pauline Schultz. However, in view of the suggestions contained in the petition for rehearing and the answer thereto, we are amplifying the remanding order. The judgment of the circuit court of Cook county is reversed and the cause remanded with directions to enter an order and judgment that at the time of his death, William E. Schultz was domiciled in California; that the trustee pay to Pauline Schultz out of the net income of the trust estate thu sum of $400 a year in convenient instalments commencing with December 12 1939, and continuing during her lifetime; that two thirds of the estate, less an amount sufficient to provide for payment of the annuity to Pauline Schultz without reducing the one third to be paid to the schools, shall descend and be distributed as intestate in accordance with the law of California; that the bequest to the trustee of one half of the estate to the Addison Manual Training School for Boys and one half to the Addison Industrial School for Girls, be reduced so that each school will receive one sixth of the estate, without reduction because of the annuity to Pauline Schultz,- and for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

Kilby, J., concur.

Mr. Justice Hebel

dissents and does not concur with the conclusion reached by the majority opinion of this court in finding that William B. Schultz, deceased, was domiciled in California at the time of his death, nor with the conclusion that by reason thereof the bequest to the trustee of one half of the estate to the Addison Manual Training School for Boys and one half of the estate to the Addison Manual Training School for Girls be so reduced that the aggregate thereof shall not exceed one third of the entire estate, as required by the laws of the State of California, and that two thirds of the estate shall descend and be distributed as intestate estate in accordance with the statutory laws of California. (Section 41, Article II, Probate Act of California, amended by statute 1939, ch. 334 T.' B. 79.) The California Probate Act provided in substance that no more than one third of any estate may be bequeathed or devised to any charitable or benevolent society or corporation, or in trust for charitable uses by a testator who leaves a spouse, brother, sister, nephew, niece or descendant or ancestor surviving him, who under the will or the laws of succession would otherwise have taken the property so bequeathed or devised, and that if such devises and bequests shall' exceed one third of such estate then a pro-rata reduction shall be made so as to reduce the aggregate thereof to one third of the estate, and that all property bequeathed or devised contrary to the provisions of this law shall go to the descendants, etc., if and to the extent that they would have taken the property as aforesaid but for such devises or legacies.

Upon this subject the Supreme Court of Illinois, in the case of Fowler v. Lamson, 146 Ill. 472, said upon the question of whether a law of one State can be enforced by a State other than the State of the lex loci, as follows: In the case of Lust v. Atchison, T. & S. F. Ry. Co., 267 Ill. App. 60, the court held that where a statute of a State creates a new right and also provides a special remedy, such right will not be enforced in another State where the remedy is unknown. Therefore, upon the question involved, as to the enforcement of the statutory remedy afforded by the California special statute, it is my opinion that the special statute cannot be enforced in this State.

£ ... It is well settled that these special remedies having been provided for the enforcement of the individual liability of stockholders created by the laws of Kansas, they alone can be pursued to enforce that liability. (Fourth Nat. Bank v. Francklyn, 120 U. S. 747, and cases cited in note; 3 Am. S. R 854; Thompson on Liability of stockholders, sec. 56; Cook on the Law of Stock and Stockholders, sec. 219.) The reason of this rule is manifest. The liability only exists by force of some constitutional or statutory provision, and the person incurring that liability is presumed to do so subject to its enforcement by the special provision made for that purpose, and no other. Lowery et al. v. Inman, 46 N. Y. 119, and authorities cited.
£ 1 The amended bill in this case proceeds upon the allegation that the corporation has been dissolved, but attempts to enforce the individual liability of the defendants by a proceeding entirely different from that prescribed by the statute of Kansas, and thus deprive the defendants of the speedy and adequate remedy given them by that statute against other stockholders, if they should be held liable. There is also the further insuperable objection to this proceeding that it is an attempt to enforce the individual liability of the defendants in a jurisdiction other than that in which the corporation exists, the rule being, that when a special remedy is given creditors of a corporation against its stockholders, the liability cannot be enforced in another State. (Lowery v. Inman, supra; Christenson v. Eno, 106 N. Y. 97; Minnick v. Mings Iron Works Co., 25 W. Va. 184.) The reason for this rule is forcibly illustrated by the above quoted statute of Kansas providing a remedy in case of the dissolution of a corporation, which remedy, it must be conceded, could only be enforced in the State of Kansas, where, presumably, the stockholders of the corporation generally reside.”


author: Mr. Presiding Justice Burke

text:
    Jessie Katz, Executrix of Estate of George F. Harding, Deceased, Appellee, v. William Berkos et al., Defendants. William Berkos and Charles R. Smith, Appellants.
    Gen. No. 42,206.

      Heard in the third division of this court for the first district at the April term, 1942.
    Opinion filed December 9, 1942.
    Charles R. Smith, of Chicago, for appellants.
    Donald P. Vail, of Chicago, for certain appellee.
    Enoch J. Price and Owen N. Price, both of Chicago, for certain other appellees.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

William Berkos was the owner of certain real estate located in Chicago. On March 23, 1927, he made, executed and delivered eight principal promissory notes, numbered from one to eight inclusive, one for $21,600, one for $2,600 and six for $5,400 each, all payable on or about two years after date, with interest at 6 per cent per annum, payable semiannually, and interest at 7 per cent per annum after maturity. To secure the payment of the notes, William Berkos and Pauline Berkos, his wife, executed and delivered a trust deed to the Chicago Title & Trust Company, as trustee. On May 25, 1939 Jessie Katz, executrix of the estate of George F. Harding, deceased, filed a complaint in the superior court of Cook county to foreclose the lien of the trust deed. She alleged that George F. Harding, during his lifetime, owned principal note No. 1; that note No. 3 was paid; that notes Nos. 2, 4, 5, 6, 7 and 8 were owned one each by Agnes McCoy, Luella McCoy, Margaret Smith Hayden, Thomas Smith, Henry Smith and James Smith; that payments to George F. Harding on account of note No. 1 reduced the principal amount due under the note to $6,600; that two of the remaining six notes were reduced by principal payments to the sums of $1,982 and $1,338, and the remaining four notes to the sums of $1,755 each; that interest was paid to March 23, 1933; that the balance of $6,600 on note No. 1, with interest at 7 per cent to March 23, 1933, was unpaid; that there was due on the last six described notes the sum of $10,340, with interest at 7 per cent from March 23, 1933, or a total of $17,000, together with interest from March 23,1933, amounting to $7,503.62 on May 1,1939, or an aggregate sum of $24,503.62; and that as principal payments were made certain lots were released from the lien of the trust deed. She brought the complaint for the benefit of the holders of all the notes. She further alleged that on April 11, 1927, Bedrich Mager, the then owner of the premises, executed a second trust deed, which was subordinate to the trust deed she sought to foreclose. She averred that the Lawndale National Bank of Chicago, as trustee under the provisions of a trust agreement dated June 20, 1927, held title to a certain lot and that the beneficial interest therein was vested in Charles R. Smith and others. On July 28, 1939, pursuant to léave of court, plaintiff filed an amendment to her complaint showing that since the filing of the original complaint she ascertained that one of the defendants, Agnes McCoy, the holder of one of the notes sought to be foreclosed, had died, and that Warren D. Emerson, Jr., was the executor of her last will and testament. Accordingly, Emerson was named as a defendant in place of Agnes ■ McCoy. The complaint was also amended by adding a paragraph showing that title of the property sought to be foreclosed vested in Charles R. Smith as to an undivided 34/100th interest, Helen Maloney as to an undivided 20/100th interest, Frank Kaiser as to an undivided 43/100th interest, and in the heirs-at-law of Julius Mager, deceased, as to an undivided 12/100tti interest. On August 2, 1939 Charles R. Smith and William Berkos filed separate answers alleging that payments of $14,161.96 were made on the notes in excess of those credited in the complaint. These answers alleged that no interest was due and pleaded usury, citing sec. 6, ch. 74, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 67.06]. The answers asserted that because of the plea of usury and the payments made, there was a balance due on all the principal notes of $2,789.54. Defendants also claimed the release of additional lots because of prepayments.

On July 25, 1939, Charles R. Smith, one of the defendants in the foreclosure suit, filed his separate complaint in the superior court of Cook county for partition of the same property. The parties to the foreclosure suit were named as defendants. In this complaint Smith, referring to the notes sought to be foreclosed, alleged that “this plaintiff further shows that most of the notes secured by this trust deed, if not all of the said notes, have been paid, and most, if not all of the real estate secured by the said trust deed, and still remaining not released from said trust deed should be released, if such happening has not taken place at this time.” All of the noteholders were made defendants in the partition case. The owners and holders of the notes, in an answer filed in the partition suit, denied that most of the notes were paid, denied that any of the real estate secured by the trust deed should be released, and alleged that a large amount remained unpaid upon each and all of the notes, except note No. 3, which had been paid. The answer stated that Jessie Katz, as executrix of the estate of George F. Harding, deceased, was the owner of note No. 1 and that there was a balance due and unpaid on that note of $6,600; that Margaret Smith Hayden was the owner of note No. 6, and that there was a balance due and unpaid on that note in the sum of $1,755; that Thomas Smith was the owner of note No. 7, and that there was a balance due and unpaid of $1,755; that Henry Smith was the owner of note No. 4, and that there was a balance due and unpaid of $1,755; that Huella McCoy was the owner of note No. 2, on which there was a balance due and unpaid of $1,338; and that Warren D. Emerson, Jr. was the owner of note No. 8, on which there was a balance due and unpaid of $1,982, and that there was also interest due on each of said notes at the rate of 7 per cent per annum from March 23,1933. The noteholders in their answer also stated that any right of partition by the plaintiff was subordinated to the lien of the notes, and that until the notes were fully paid and discharged, any partition would be meaningless. The answer also alleged the filing of the complaint to foreclose by Jessie Katz, as executrix of the estate of George F. Harding, deceased, on behalf of herself and all the other note-holders on May 25, 1939, and averred that there was an unpaid balance due on all of the notes in the sum of $17,000, together with interest at 7 per cent per annum from March 23, 1933, amounting to $7,503.62, or a total balance due on the unpaid promissory notes at the time of the filing of the answer in the partition suit of $24,503.62. On April 15, 1940 a decree of partition was entered. This decree was drafted and presented to the court by the plaintiff therein, Charles R. Smith. Paragraph 8 of the partition decree finds that “the sum of $14,320 was due and unpaid on the said notes so secured by the said trust deed 9675004 on March 1, 1940, and interest at the rate of five percent per annum upon the said sum of $14,320 from March 1, 1940, until payment thereof.” This decree appointed commissioners to make partition of the premises. The commissioners reported that the premises could not be divided without manifest prejudice to the "parties in interest. On May 10,1940 a decree of sale was entered in the partition suit directing that the real estate be sold at public auction, subject to the trust deed sought to be foreclosed securing payment of the eight promissory notes dated March 23, 1927. This decree found that “there was due on March 1, 1940 on account of said trust deed 9675004 and notes secured thereby the sum of $14,320, with interest at the rate of five percent per annum after [that] date, until the payment thereof.”

On February 4,1941’, plaintiff in the foreclosure suit filed her “second amendment” to her complaint, and set out that on July 25, 1939 Charles R. Smith filed his complaint for partition; that the partition complaint alleged that most, if not all, of the notes were paid and that other real estate should be released; that a partition decree was entered on April 15, 1940, finding that there was due and unpaid on the notes the sum of $14,320, with interest at 5 per cent per annum from March 1, 1940, and that a decree of sale was entered in the partition suit on May 10, 1940, the date of the sale being set for February 27, 1941. In this “second amendment,” which was in the nature of a supplemental complaint, plaintiff in the foreclosure case also averred that the decree in the partition case fixed the amount of the indebtedness on the notes and also their character as a first lien, and asked foreclosure of the lien in the sum of $14,320, with interest at 5 per cent per annum from March 1, 1940. The answer (to this supplemental complaint) of William Berkos and Charles B. Smith admitted the allegations of fact but not the conclusions of law. Plaintiff filed replies more specifically pleading the conclusions of law stated in her so-called “second amendment.” In the meantime, testimony in the foreclosure ease was being taken before a master in chancery. Plaintiff in the foreclosure case put in her testimony before the master and the defendants tendered a witness and documents to prove the defense of usury alleged in their answers. Plaintiff objected, contending that the question of the amount of the indebtedness was settled in the decree entered in the partition suit. The master referred the question to the chancellor for instructions. The matter was then argued before the chancellor, who entered an order directing that plaintiff’s objection to the proffered testimony be sustained. In the foreclosure case the owners of the notes agreed as to their respective shares in the sum of $14,320. The master found that under the doctrine of estoppel by verdict the sum of $14,320 was due and unpaid on the notes, with interest thereon at the rate of 5 per cent per annum from March 1, 1940. As to the contention of defendants that under the doctrine of estoppel by verdict plaintiff could not recover attorneys’ fees, the master found that plaintiff could recover for the services of her attorneys in the conduct of the foreclosure case and in the defense of the partition suit. Objections to the master’s report were allowed to stand as exceptions. The chancellor overruled the exceptions and entered a decree in the foreclosure case finding’ that there was due to the owners of the notes the sum of $14,320, plus interest from March 1, 1940 at 5 per cent per annum, and allowing the plaintiff. amounts expended in the prosecution of the foreclosure suit and $2,200 for her attorneys’ fees. William Berkos and Charles B. Smith prosecute this appeal and pray that we reverse the order directing the master to refuse the evidence offered by the defendants, the order overruling defendants’ exceptions to the master’s report and the decree of sale, and that we remand the cause with directions for further proceedings in accordance with their contentions.

Plaintiff’s theory of the case is that the pleadings in the partition suit placed in issue the amount due on the mortgage notes involved in the foreclosure proceeding ; that the decree entered April 15, 1940 in the partition suit specifically found the amount due on these notes; that the parties to this proceeding are bound by the finding in the partition decree; that the attempt by defendants to show a smaller amount due is improper both under the doctrine of estoppel and as constituting a collateral attack upon the partition decree; that since there was no issue in the partition suit with respect to the matter of attorneys’ fees and costs, and no finding by the court in that proceeding with reference to such items, and that since in the partition suit the premises were ordered sold subject to the lien of the mortgage here involved, plaintiff may recover her full attorneys’ fees and costs. Defendants’ (appellants’) theory of the case is that they realized on March 1,1940 that usury was not available to them in the partition suit and their offer to dismiss was made to noteholders of the first mortgage; that a settlement agreement was made and a partition decree entered within a few weeks; that it took the noteholders about nine months to decide they would not proceed with the settlement; that when the “second amendment” to the complaint was filed the defendants realized that, properly pleaded, the partition decree would be res judicata as to their independent defense that a number of lots should be released; that no evidence was offered on this point; that two questions of law remain; that res judicata does not apply to the usury defense, because this point was not pleaded or adjudicated in the partition suit and was not susceptible of adjudication; that as to the second question, res judicata being conceded, the plaintiff should not be permitted to prove costs and fees due at the time of entry of the partition decree because they had been proved and allowed in the partition suit, and for the further reason that they were susceptible of adjudication.

After the filing of the partition suit, discussions took place with a view to a settlement. These discussions resulted in an agreement whereby the sum of $14,320 was to be paid in full of all claims by the noteholders. The latter claimed an aggregate indebtedness of $24,503.62. The settlement was consented to by Miss McCoy, one of the noteholders, who later refused to accept the settlement tentatively arranged by her counsel. The settlement contemplated the completion of the partition proceeding within a 90-day period in which the money to pay the notes would be raised. The noteholders contend that they were averse to having any finding in the partition suit as to the amount due on the first mortgage without being sure that the amount of the settlement would be procured, and that the defendants desired the partition sale to be subject to the first mortgage so that should they fail to raise the money required by the settlement agreement, they (defendants) would not lose the 15 months redemption rights which they would have after the mortgage fore- . closure sale. All the parties in interest signed a stipulation on November 29, 1939 providing that the noteholders would accept in full of all sums due them for principal, interest, attorneys’ fees and costs the sum of $14,320, if such sum was paid within 90 days ; and that if such sum was not paid within 90 days, the foreclosure proceedings could proceed the same as if there had been no stipulation. The stipulation further provided that if $14,320 was not paid within 90 days, then the foreclosure proceedings “may proceed the same as if this stipulation had not been entered into, and nothing herein contained shall be in any way binding upon any of the parties hereto, nor shall the terms of this proposed settlement be disclosed to the court in said last mentioned proceeding.” The stipulation was offered in evidence in the partition suit on December 12, 1939. No one appeared for the noteholders. On December. 4, 1939 the superior court entered the following order in the partition suit:

“This cause coming on to be heard on plaintiff’s motion to strike the answers of Jessie Katz, Executrix of the estate of George F. Harding, deceased, et ah, and it appearing to the court that the said Jessie Katz as such executrix heretofore and prior to the institution of this action filed her complaint in this court in case No. 39-S-6150, seeking the foreclosure of that certain trust deed recorded in the Recorder’s Office of Cook County, Illinois, as document No. 9675004, and it further appearing to the court that plaintiff in this cause and various of the defendants hereto duly filed in that proceeding their answers asserting certain defenses to the said foreclosure proceeding, which same issues are common to this proceeding, and the court having heard evidence and arguments of counsel, and being advised in the premises finds: that it is to the best interests of all the parties hereto that this proceeding be not complicated and delayed by litigating herein the merits of the controversy relative to the amount of indebtedness secured by the said trust deed. It is, therefore, ordered and decreed that all questions relative to the lien of said trust deed No. 9675004 and the amount of indebtedness secured thereby be, and the same are hereby withdrawn from this case, and it is further ordered that upon the entry of any decree of partition or of sale herein that said decree shall provide for such partition or sale to be made subject, except as to Lot 10 described in the complaint herein, to the lien of said trust deed recorded in the Recorder’s Office of Cook County, Illinois, as document No. 9675004, leaving for determination in said cause 39-S-6150 the amount of indebtedness secured by said trust deed.”

Donald P. Vail was the attorney for plaintiff in the foreclosure case and represented the noteholders in the partition case. There is a conflict in the testimony as to what occurred after the partition decree was entered. It is contended that in January 1941, in a conference at Mr. Vail’s office, he stated that all settlement negotiations having failed, the partition decree should be vacated and the entire matter thrashed out in the foreclosure proceeding. Mr. Vail further testified that at that time Mr. Smith denied there was any agreement for vacating the partition decree and that words were had. Mr. Vail stated that thereafter Mr. Smith again stated that he would not consent to a vacation of the partition decree and would oppose any motion to vacate it. Mr. Smith testified that he did not state that he would oppose any motion to vacate the partition decree. Mr. Vail testified that he was of the opinion that he had been negligent in failing to vacate the partition decree within the term, and that if Mr. Smith denied any agreement to vacate same, such a motion to vacate would be unsuccessful. Mr. Vail further stated that he therefore regarded himself as bound by the amount found due on the notes in the partition decree. In November or December 1940 Mr. Smith told Mr. Vail that he did not have the power to vacate the partition decree, as there were other parties in the suit.

Defendants insist that they are not bound in the foreclosure suit by the amount found due on the mortgage notes in the partition decree, and'that they should prevail in their plea of usury. The noteholders insist that the defendants are bound by the amount found to he due on the notes in the partition decree. The parties are in agreement that the case involves the application of the doctrine of estoppel by verdict as distinguished from the doctrine of estoppel by judgment. Both estoppels fall within the general heading of res judicata. The law on the subject is clearly and concisely stated in Barry v. Commonwealth Edison Co., 374 Ill. 473, 478:

“At the outset in the consideration of the doctrine of res judicata or estoppel it must be noted that there is a wide difference between the effect of a judgment or ruling as a bar against the prosecution of a second action between the same parties upon the same claim or demand, and its effect, as an estoppel, in another action between the same parties upon a different claim or demand; in the former it is conclusive not only as to every matter which was offered to sustain or defeat the claim or demand, hutías to any other matter which might have been offered for that purpose. (Markley v. People, 171 Ill. 260; Baldwin v. Hanecy, 204 id. 281; Harding Co. v. Harding, 352 id. 417.) Where, however, the second action between the parties is upon a different claim or demand, the judgment or ruling in the trial action operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was rendered. Riverside Co. v. Townshend, 120 Ill. 9; People v. Wyanet Electric Light Co., 306 id. 377; Hoffman v. Hoffman, 330 id. 413.
“The present suit does not involve the same claim or issue as that presented before the Commerce Commission and, therefore, the rule that everything that might have been litigated is settled does not apply. In order that the finding of the commission operate as an estoppel under the other branch of the rule there must have been an issue decided against appellant that is material to his right of recovery in the present suit.”,

The noteholders agree that the causes of action are different and that the broad rules of estoppel by judgment do not apply. They rely on the operation of the doctrine of estoppel by verdict. The question then arises as to whether the amount found due on the first mortgage notes in the partition decree can be again litigated by defendants, or whether they are bound by the finding. If that issue was litigated and passed upon, it cannot be again litigated regardless of the character of the prior suit. Defendants urge that the court erred in entering the order of May 8, 1941, directing the master to refuse evidence offered by them to prove the exaction of usury. We agree with plaintiff that to ascertain what the issues were and how decided, the court will look to the proceedings in the earlier case. The complaint in the partition suit contained allegations showing the execution of the first mortgage here involved; that most, if not all, of the notes were paid, and that most, if not all, of the real estate unreleased from the trust deed should be released. The complaint also sets out the original amounts of the notes and the names of the parties claiming an interest therein. The answer of the note-holders contained allegations denying that most of the notes secured by the trust deed had been paid; denying that any of the real estate should be released, and averring that a large amount remains unpaid on each and all of the notes, except note No. 3, which had been paid and canceled; averring that the réal estate described in the trust deed, except as to lots released of record, was subject to the lien of the trust deed; averring ownership of the respective notes and the amounts due on each note; that all of the notes bore interest at 7 per cent per annum after March 23, 1933; that plaintiff’s partition rights were subordinate to the lien of the notes, reciting the filing of the foreclosure action, and stating that by reason of the prior pendency of that proceeding, no steps should be taken in the partition suit relating to the rights of the note-holders. The decree entered in the partition suit on April 15, 1940 found that the real estate was subject to the lien of the trust deed and that on March 1,1940 there was due and unpaid on the notes the sum of $14,320, with interest at 5 per cent per annum from March 1, 1940. On May 10, 1940 a decree of sale was entered, directing the sale of the premises subject to the lien of the trust deed. We agree that the record shows that the amount due upon the notes was in issue by the pleadings in the partition suit and that there was a specific finding by the court of the amount due upon the same. The answers of the defendants admitted the statements of fact pleaded by plaintiff.

The decree of April 15, 1940 was specific and has been accepted by the parties. It is significant that none of the parties to that decree have sought to have it vacated or modified. Presumably, all of them were satisfied with it. We are of the opinion that the court did not err in entering the order of May 8,1941, directing the master to refuse the evidence offered by defendants to prove the exaction of usury. The partition decree left nothing about which to speculate and such evidence would be inadmissible for the purpose of impeaching or contradicting the decree. As pointed out in Rubel v. Title Guarantee & Trust Co., 199 Ill. 110, where a judgment is pleaded or offered in evidence in bar of a claim, and it is uncertain from the record what was adjudged at the time the judgment was entered, parol evidence is admissible to show what matters were in controversy, what testimony was given and what questions were submitted to the court for its determination at the time the judgment was entered, but such evidence will never be received for the purpose of impeaching or contradicting the record.

Defendants state that the defense of usury was not pleaded and could not have been pleaded by plaintiff or defendants in the partition suit, and that this question was not adjudicated in the partition suit. Defendants cite cases which hold that where affirmative relief is sought in equity from a usurious transaction, the parties seeking such relief will be required to do equity. The court required the payment of the principal amount due with statutory interest. In the partition proceeding relief would have been granted if usury had been pleaded and established and all the usurious payments would have been credited to the defendants. They would have been required to pay the principal amount due with statutory interest. It must be remembered that at the time the partition decree was entered, plaintiffs therein (defendants here) knew that they were contending in the foreclosure case that the indebtedness under the first mortgage was greatly reduced because of the claim of usury. Hence, in presenting the decree (in the partition case) showing the amount due they undoubtedly had in mind their contentions in the foreclosure case. The decree in the partition suit was presented by the plaintiffs therein, who are the defendants here. Plaintiff in the partition case knew what his rights were when he filed and prosecuted that suit, and he cannot be heard to complain of the decree entered therein. The defendants are seeking, with the defense of usury, to show a different amount due than found by the court in the partition suit. The partition decree imports absolute verity and cannot be attacked in a collateral proceeding.

The attorneys for Luella McCoy and Warren D. Emerson, executor of the estate of Agnes McCoy, deceased, point out that it does not appear anywhere in the record by pleading or evidence that either defendant paid any of the alleged usury. They suggest that Mr. Smith had no interest in the land until June 10, 1938, years after the alleged usury was paid, and that-there is no theory mentioned in the record or in appellants’ brief upon which Mr. Smith could plead or have any benefit of usury paid by other parties whose identity is not even stated or shown. These attorneys also suggest that as to Berkos, the partition decree shows that he had no interest in the title to the property on the day the decree was entered, and that when he parted with his interest does not appear, furthermore, no theory is suggested in the record or in appellants’ brief upon which Berkos could plead or have any benefit of any usury which might have been paid by other parties whose identity the record does not disclose. The record does not show any pleading or proof by the defendants, or either of them, that they paid so-called usury or were in such privity with the party who claimed to have paid it as to be entitled to the benefit thereof. We agree with these contentions.

For the reasons stated, the decree of the superior court of Cook county is affirmed.

Decree affirmed.

Hebel and Kiley, JJ., concur.


text:
    Hausman Steel Company, Appellant, v. N. P. Severin Company, Appellee.
    Gen. No. 42,253.
    Heard in the third division of this court for the first district at the June term, 1942.
    Opinion filed December 9, 1942.

      Duck & McManigal, of Chicago, for appellant; Thomas Marshall, of Chicago, of counsel.
    J. E. Yappe, of Chicago, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

In a second amended statement of claim filed in the municipal court of Chicago, the Hausman Steel Company, a corporation, plaintiff, sought damages in the sum of $7,773.94 and interest. Plaintiff alleged a breach by the defendant on September 13, 1938 of a contract entered into on August 12, 1938 for the installation by plaintiff, as subcontractor, for the agreed price of $20,400, of removable steel pans or “forms” as temporary foundations on which defendant, as general contractor, was to pour concrete floors in buildings 18, 19 and 20 of the United States Veterans’ Hospital at Dayton, Ohio, then in the course of erection. This amended statement of claim sets out the entire correspondence between the parties from April 16, 1938 to September 13, 1938. The defendant denied that it entered into a binding contract with the plaintiff. A trial before the court without a jury resulted in-a finding and judgment for the defendant and against the plaintiff. This appeal followed.

Plaintiff is an Ohio corporation, with its principal offices at Toledo. Defendant is an Illinois corporation, with its principal offices at Chicago, engaged in the business of building construction, and in June 1938 was awarded a contract by the United States Government for the construction of three buildings, commonly referred to as Military Home Buildings 18, 19 and 20 for the United States Veterans’ Hospital at or near Dayton, Ohio. Defendant negotiated with many subcontractors, among them the plaintiff, for the various divisions of the work. Plaintiff submitted its bid to this defendant as well as to 25 or 30 other general contractors who were endeavoring to secure the general contract. The defendant negotiated with the plaintiff and others for a subcontract for the supplying of the metal pans for use as forms, and for the labor of erecting, centering and dismantling them in connection with the construction of the concrete floors of the buildings." On June 13, 1938 plaintiff sent out to defendant and other bidders a preliminary proposal. Defendant sent a letter to plaintiff and other bidders that it was its intention to award the work during “our representative’s visit to Dayton, Ohio from August 9th to August 13th. ’ ’ On August 6, 1938 defendant wrote plaintiff: “Replying to your letter of August 3rd, please be advised that we expect to close the matter of metal pans on the above project in Dayton on Thursday, August 11th. Our representative, Mr. B. J. Myren, will be at the Van Cleve Hotel in Dayton at that time.” Accordingly, on August 11, 1938 Mr. B. J. Myren, secretary of defendant, met with Mr. Hausman, president and treasurer of plaintiff, and they discussed some of the details with reference to a subcontract for the supplying of the metal pans as forms and for the labor of erecting, centering and dismantling them. On August 12,1938 Mr. Myren (then at Dayton) and'Mr. Hausman (then at Columbus) had a 'telephone conversation. Mr. Hausman testified that Mr. Myren said to him: “Well, the job is yours. G-o ahead and get your drawings started and send in a proposal in accordance with our conversation. When you send in your revised proposal, I will take care of it.” Mr. Myren, in his testrqaony, denied this, but contends he said: “Tes, we are going to give you the job and will send you a contract from Chicago.” By letter dated August 13, 1938 plaintiff forwarded its “revised proposal,” which it contends was adopted by the parties as the sole evidence of the contract between them. Defendant admits that plaintiff’s exhibit “35” is, in substance, the offer made by plaintiff to defendant on August 11, 1938. By letter dated September 2, 1938 defendant mailed to plaintiff its standard form of contract dated September 1,1938, by which it intended to give plaintiff the subcontract for the metal pan work. Plaintiff rejected this contract by its letter dated September 10, 1938, and the defendant thereupon awarded the work to another. Defendant asserts that the letter of September 2, 1938 enclosing the standard form of contract was mailed on or about September 2, 1938. The testimony of plaintiff’s witnesses is that the letter and contract were not received by plaintiff until September 10, 1938. It is plaintiff’s position that the contract was entered into on August 12, 1938, and that the three proposals were memorials of the contract. Exhibit “35,” which plaintiff contends expresses the agreement the parties entered into on August 12, 1938, provides for the payment of $20,400 to plaintiff. Plaintiff declares that in fulfilment of the contract, during the period from August 12, 1938 to September 9, 1938 it prepared and reconditioned 140 tons of steel pans or forms necessary for use on the Dayton jobsite on September 10, 1938, as instructed by defendant; that on September 8, 1938 plaintiff commenced delivery of 140 tons of steel pans from its Toledo factory to Dayton, Ohio, and on September 8 and 9, 1938 actually delivered 20 tons of pans to the jobsite at Dayton; and that from September 10 to September 15, 1938 plaintiff’s employees were present and working on the job at the jobsite in Dayton. Plaintiff contends that on September 10, 1938, while it was in the process of delivering its steel forms, and at a time when plaintiff had already expended $2,440.42 in reliance upon exhibit “35” as the evidence of the contract between the parties, defendant submitted to plaintiff a confiscatory, variant and pretended substitute form of contract, whereby plaintiff’s costs would have been increased by $2,325, and its anticipated profits reduced 43% per cent; that thereupon plaintiff refused to sign defendant’s forms of contract; that plaintiff brought its materials back from Dayton to Toledo; and that because of the breach of the contract by the defendant, plaintiff was damaged in the sum of $2,413.94 because of the expense incurred, and $5,360 loss of profit, together with interest from September 13, 1938.

Plaintiff insists that an oral contract was entered into between the parties on August 12, 1938, the terms of which are set out in plaintiff’s revised proposals of August 13, 1938; that the revised proposals were adopted by the parties as the sole evidence of the contract between them; that the defendant cannot now vary the terms of the revised proposals, and that by reason of the wrongful breach of the contract, plaintiff suffered a loss of $7,773.94. Defendant contends that it was the express intention of both the plaintiff and defendant that a contract in writing be entered into between them and signed by both parties before it became binding upon either. The rule is that where the parties make the reduction of the agreement to writing, and its signature by them, a condition precedent to its completion, it will not be a contract until that is done. (Baltimore & Ohio Southwestern R. Co. v. People ex rel. Allen, 195 Ill. 423, 427.) To constitute a binding contract, the minds of the parties must meet upon the essential terms. On August 26, 1938 plaintiff wrote to defendant, and among other things, said: “Incidentally, we have not received our signed contracts.” On September 1, 1938 plaintiff wrote again to defendant, and among other things, said: “Of course, we should have a signed contract before shipping any material, but you know as well as we do that a thorough understanding should be obtained before we get into the field. ... In the meantime we hope that yoür Chicago office gets the contract straightened out properly so we both know exactly where we stand.”. On August 18, 1938 defendant wrote plaintiff, and said, among other things: “Due to simultaneous accumulation of contracts, some delay is being experienced in getting them out. However, contract for pans and centering will be sent- you as quickly as possible, probably within the next few days.” In plaintiff’s letter of August 13, 1938, with which it enclosed the revised proposals of the same date, it states: “Enclosed herewith find revised proposals on the above job.” In its letter of September 1, 1938 plaintiff said: “For instance, you seem to have the impression that we form all beam tees, which, of course, is in error and so that you will understand our proposal, a copy is enclosed herewith, together with a copy of our standard drawing R-l.” In plaintiff’s letter of September 10, 1938 we find the following: “We cannot possibly sign this contract as it is not in accordance with our proposal. ... If you want to prepare another form embodying our proposal, it will meet with our approval . . . and if you want us to proceed, we had better take quick action . . . .” As a postscript to that letter, appears the following: “If you prefer, sign and return one copy of the enclosed proposal.” We agree with the defendant’s contentions that the parties did not concur on the essential terms of their negotiations for a contract, and that the minds of the parties did not meet on the essential terms. We have carefully read the testimony and the exhibits, and are of the opinion that the trial judge decided the case correctly. It is manifest that it was the intention of both parties that a written and signed contract-be entered into between them. The expenses incurred by the plaintiff while it was negotiating for a contract are not recoverable.

Plaintiff charges that the testimony of defendant’s witnesses Myren, Brendt and Eastman was totally discredited, and that the overwhelming weight of the evidence supports the plaintiff. The trial judge heard and observed the witnesses, and we are of the opinion that the record supports his findings. Plaintiff points out that section 41 of the Civil Practice Act (sec. 165, ch. 110, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 104.041]) provides that “allegations and denials, made without reasonable cause and not in good faith, and found to be untrue, shall subject the party pleading the same to the payment of such reasonable expenses, to be summarily taxed by the court at the trial, as may have been actually incurred by the other party, by reason of such untrue pleading. ’ ’ This is the same as rule 36 of the municipal court of Chicago. We find that the trial court exercised a proper discretion in declining to invoke this provision.

Because of the views expressed, the judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

Hebel and Kiley, JJ., concur.