author: Mr. Justice Gridley Sullivan, P. J., and Scanlan, J.,

text:
    H. L. Siegel for Use of American Glass Company and Hyman J. Rosenberg, Appellees, v. Liberty Trust & Savings Bank, Garnishee. First National Bank of Chicago, Appellant.
    Gen. No. 36,461.

      Opinion filed October 10, 1933.
    Nat M. Kahn, for appellant.
    Henry A. Kalcheim, for appellee Hyman J. Rosenberg; Abraham Miller, of counsel.
    Herman Waldman, for appellee American Glass Company; Maurice Washer, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

In a garnishment proceeding, commenced April 24, 1931, in which two claimants of the fund intervened, there was a trial of the issues without a jury in September, 1932, resulting in the court finding in substance as follows: That there is a fund in the hands of the garnishee (hereinafter called the Liberty Bank) as shown by its additional answer, in the sum of $2,920.03; that of this fund the beneficial plaintiff (American Glass Co.) is entitled to $1,360.50; and that Hyman J. Rosenberg, intervening claimant, is entitled to the balance of the fund, or $1,559.53. On September 9, 1932, judgments were entered upon the findings against the garnishee and in favor of the beneficial plaintiff and said Rosenberg, and a judgment for costs was entered against the First National Bank (hereinafter called the First Nat. Bank), the other intervening claimant. The present appeal by the First Nat. Bank followed.

On March 3,1931, the American Glass Co. recovered a judgment against Siegel for $1,360.50, and, execution on the judgment having been returned “no property found, ’ ’ the present garnishment proceeding was commenced by the filing of an affidavit and the usual interrogatories. The garnishment writ was served on the Liberty Bank on April 25, 1931, and on April 27, it filed its answer, in substance that neither on the date of the service of the writ nor since did it have in its possession or control moneys, credits, rights, etc., belonging to Siegel.

On November 17, 1931 (additional interrogatories having been filed), the Liberty Bank filed an amended answer to interrogatories, Nos. 12 and 13, as follows:

“No. 12. Said garnishee, further answering, says that it has made the following payments out of the one-tenth beneficial interest of H. L. Siegel in trust No. 770, which said one-tenth interest has been assigned by said Siegel, under date of March 20, 1930, to the Foreman-State National Bank (hereinafter called the Foreman Bank):

July 10, 1930, — Foreman Bank, assignee of Siegel, $1,000

Sept. 4, 1930, “ “ “ “ “ 1,000

Oct. 15, 1930, “ “ “ “ “ 1,000

Dec. 4, 1930, “ “ “ “ “ 200

Dee. 19, 1930, “ “ “ “ “ 400

Jan. 30, 1931, “ “ “ “ “ 1,000

Mar. 5, 1931, “ “ “ “ “ 403.35

May 8, 1931, “ “ “ “ “ 507.15

on hand the sum. of accumulated from the “And further 2,310.97, which that it has amount has date of service of the above writ to the present date, and which funds are the property of the-Foreman Bank, assignee of Siegel.

“No. 13. Said garnishee, further answering, says that it has on hand in the above trust account at the present time contracts for the purchase of real estate, on which one-tenth of the present unpaid balance, due to the Foreman Bank, assignee of Siegel, is the sum of $36,673.51.”

It will be noted in the above tabulation of payments, made by the Liberty Bank to the Foreman Bank, that the last payment of $507.15, on May 8, 1931, was made after the service of the garnishment writ.

On January 19, 1932, by order of court, the First Nat. Bank filed its intervening petition in the cause, in which it is alleged in substance that on March 19, 1930, Siegel executed and delivered a certain written assignment, by which he conveyed to the Foreman Bank, “as security for a loan of $35,000, all of his right, title and interest in and to a certain trust, wherein the Liberty Bank was trustee under a trust agreement dated January 22, 1926, known as its Trust No. 770”; that in the assignment it is provided that the same shall be held “unto the Foreman Bank, its successors and assigns, as collateral security as aforesaid, and subject to all the rights, powers and privileges granted to said Bank under the terms of said collateral note, or any extensions or renewals thereof”; that “on May 9, 1931, Siegel executed a renewal note in favor of the Foreman Bank in the sum of $32,373.88, due June 10, 1931, with interest, which said note was secured by said assignment of Siegel’s beneficial interest under the Liberty Bank’s Trust No. 770”; that the note was thereafter indorsed by the Foreman Bank over to petitioner, and at the same time the Foreman Bank in writing assigned to petitioner the Siegel assignment ; that the note was not paid by Siegel or by anyone in his behalf; that there is now due to petitioner on the note the sum of $32,373.88, together with interest; that it was provided in Siegel’s assignment to the Foreman Bank that “one-half of the moneys received thereunder shall be retained to apply on the aforesaid indebtedness (of Siegel to the Foreman Bank), and the remaining onerhalf shall be paid to said Siegel so long as he is not in default in the performance of any of his obligations” (to the Foreman Bank); that on June 11, 1931, Siegel “was in default under said note, so executed by him and secured by said assignment,” and that accordingly petitioner, as assignee of the Foreman Bank, notified Siegel that in accordance with the terms of said written assignment, “it would apply the entire amount received from the Liberty Bank under said assignment to the indebtedness of said Siegel as evidenced by said note.” The petition prayed for the entry of an order “finding the issues in favor of petitioner with reference to the interest of said Siegel in the afore-described trust,” etc.

On the trial the assignment to the Foreman Bank, dated March 19, 1930, and signed and sealed by Siegel, was introduced in evidence by the beneficial plaintiff (American Glass Co.), and, for convenience the material parts of the assignment are here set forth, as follows:

Whereas, the undersigned, H. L. Siegel, desires to borrow the sum of $35,000 from the Foreman Bank, to be evidenced by his principal collateral note of even date herewith due four months after date, and said bank is willing to loan him said sum “provided the payment thereof and of all sums which may hereafter be loaned by the bank to the undersigned shall be secured as hereinafter set forth,” and

Whereas, the Liberty Bank, as trustee under a trust agreement dated January 22, 1926, and known as trust No. 770, holds title to the real estate described in said trust agreement, viz. (real estate described), “for the benefit of the beneficiaries therein mentioned, — the interest of the undersigned under said trust agreement, and in and to said property, being an undivided l/10th beneficial interest.”

Therefore, in consideration that the Foreman Bank has simultaneously herewith loaned to the undersigned the sum of $35,000, evidenced by his principal collateral note of even date herewith, due 4 months after date, and to secure the payment of said note “and any extensions or renewals thereof,” the undersigned, H. L. Siegel, does hereby sell, assign, transfer, convey and deliver unto the Foreman Bank, “its successors and assigns,” all his right, title and interest “in"and to and under said trust agreement above described and in and to the land and property held by the trustee thereunder, and his beneficial interest therein. ’ ’

“The undersigned further covenants and agrees that any and all money or property due or to become due to him, or to which he is or may be entitled, by reason of his l/10th beneficial interest in the trust agreement above described, and the property held thereunder by said trustee, shall be paid and delivered, and the undersigned authorizes and directs said Liberty Bank to pay and deliver the same, to said Foreman Bank. One-half (1/2) of all of such moneys received by said Foreman Bank from said Liberty Bank as trustee . . . shall be applied by said Foreman Bank towards the payment of the obligation of the undersigned to it, including said $35,000 note above described, or any notes evidencing the extension or renewal of said sum or any part thereof, and the remaining one-half (1/2) thereof shall, so long as the undersigned is not in default in the performance of any of his obligations to said bank, be paid to the undersigned. ’ ’

On the same sheet of paper, and immediately below Siegel’s signature, is the signed statement of the Liberty Bank, dated March 20, 1930, that it has received a copy of said written assignment, that it will hold the interest of Siegel under said trust agreement for the benefit of the Foreman Bank, as assignee, and that it will pay and deliver to the Foreman Bank, as such assignee, all of the moneys and properties to which Siegel would have been entitled had said assignment not been made. And the Liberty Bank “certifies” that with the exception of the above assignment it has not received any notice of any other assignment, transfer or pledge of the interest of Siegel under said trust agreement, and that Siegel at the date hereof is the owner of an undivided one-tenth beneficial interest under said trust agreement.

On May 17, 1932, before the trial, the court ordered that leave be given to Hyman J. Rosenberg to file an intervening petition “nunc pro tunc as of April 30, 1932,” and such petition was filed, sworn to by Rosenberg under date of May" 17, 1932. In the petition Rosenberg alleges that “on April 29, 1932,” Siegel “made the following assignment”: (The assignment, dated April 29,1932, signed and sealed by Siegel, is set out in full, and is in substance as follows):

That Siegel, in consideration of $10 and other good and valuable considerations paid to him by Rosenberg, hereby sells, assigns and transfers to Rosenberg “all my right, title and interest in, to and under, and any and all sums of money now due or to become due to me from Foreman Bank, or its assigns or assignees, under and by virtue of, the following assignment”: (Here is set out in full the said assignment of Siegel to the Foreman Bank, dated March 19, 1930, as above mentioned in this opinion).

In his petition Rosenberg further alleges that “he is informed and believes the fact to be” that the First Nat. Bank, an intervening petitioner herein, and the Liberty Bank as trustee, garnishee herein, have in their possession, custody or control, divers sums of money belonging to Siegel, and that petitioner, as assignee of Siegel, is entitled to said moneys, which “are due to said Siegel out of an assignment heretofore made to the First Nat. Bank as set forth above.” The prayer of the petition is that the court may enter an order “setting aside such sums of money, now in the possession or control of the First Nat. Bank and/or the Liberty Bank, to Hyman J. Rosenberg, as assignee of said Siegel.”

On July 1, 1932, the Liberty Bank (garnishee) filed answers to certain additional interrogatories propounded by the American Glass Co. The gist of the answers is that the total amount collected by the Liberty Bank, and then in its hands, “as the proceeds of the l/10th beneficial interest of said, Siegel in said Trust No. 770,” is the sum of $2,920.03.

On the trial Siegel and one other witness testified for the beneficial plaintiff (American Glass Co.); Siegel also gave certain testimony as a witness for Rosenberg; and Otto J. Hansa, a vice president of the First Nat. Bank, and formerly a vice president of the Foreman Bank, testified for the First Nat. Bank. Considerable documentary evidence was introduced. Rosenberg, intervening petitioner, did not take the stand in-his own behalf. From all the evidence the following facts in substance appeared:

Prior to March 19, 1930, Siegel owed the Foreman Bank the sum of $14,000. Siegel also had guaranteed the payment of an additional indebtedness of $14,000, owing to the bank by the Independent Auto Sales Company, of which he was an officer. Siegel requested the bank to loan him personally an additional sum of $7,000. After negotiations the bank agreed to do so, provided he would assume the indebtedness of the independent Auto Sales Company and execute a new note for the entire indebtedness ($35,000), and provided further he would assign to the bank as security for said indebtedness his one-tenth beneficial interest in said Trust No. 770; Siegel consented and on March 19, 1930, received the additional $7,000, delivered his $35,000 note, due in four months, and executed and delivered to the bank said written assignment above set forth. On the following day the Liberty Bank, as trustee, was notified of the assignment and consented thereto in writing as above set forth. Thereafter and prior to April 25, 1931 (the date of the service of the garnishment writ), the Liberty Bank (as shown in its amended answer as above) made seven payments, out of Siegel’s beneficial interest, to the Foreman Bank. On May 8, 1931 (after the service of the garnishment writ), the Liberty Bank made an additional payment to the Foreman Bank of $507.15, out of said beneficial interest. All eight of these payments were made by checks of the Liberty Bank, payable to' the order of the Foreman Bank and Siegel jointly. These checks were so drawn as a safeguard to prevent Siegel from questioning in the future the payments made out of his beneficial interest. And it appears that as a rule Siegel personally collected these checks, indorsed them and delivered them to the Foreman" Bank. When in each case the amount of the check was received by the Foreman Bank, one-half was credited on Siegel’s indebtedness to the Foreman Bank as evidenced by his $35,000 note (or renewal note), and the other half to Siegel on Ms personal cheeking account in the Foreman Bank. This was done in compliance with the terms of Siegel’s assignment, as above stated, “so long as the undersigned (Siegel) is not in default in the performance of any of his obligations to said bank.” When the payment of March 5, 1931, in the amount of $403.35, was made by the Liberty Bank, the usual procedure was followed, and Siegel’s indebtedness to the Foreman Bank (as evidenced by his then outstanding renewed note, due on April 10, 1931) was credited by one-half of said payment, and the other half was credited to Siegel’s personal checking account, as he was not then in default. Thereafter Siegel’s note to the Foreman Bank, due on April 10, 1931, was extended to May 9, 1931. In the meantime, on April 25, 1931, the garnishment writ was served on the Liberty Bank but, nevertheless, the Liberty Bank issued its check of May 8, 1931 for $507.15, payable to the order of Siegel and the Foreman Bank jointly, and delivered it to Siegel, and he in turn indorsed and delivered it to the Foreman Bank, but no part of the amount of the check was credited to Siegel’s checking account, nor did he otherwise receive any part. About tMs time, according to the testimony of Otto J. Hansa, a witness for the First Nat. Bank, Hansa had conversations with Siegel. Hansa testified:

“I told Siegel I desired to have his note paid (the note maturing on May 9,1931) and that there would be no further renewals; he pleaded for another extension, saying that he felt reasonably sure he could ‘put over’ a certain pending deal within 30 days, whereby he could pay the entire note; therefore, I granted him another 30 days’ renewal but I told him, in view of garMshments coming against his account and his affairs being in such shape, that I would not further share with him any payments that might be received from the proceeds of this trust but would appropriate the entire amount of the checks. . . . We renewed the note to June 10th. . . . When this renewed note matured I had another conversation with Siegel at the First National Bank. ... I demanded payment of it, but no part of it has ever been paid. ’ ’

This collateral renewed note was introduced in evidence by the First Nat. Bank. It is for $32,373.88, signed by Siegel, payable to the order of the Foreman Bank on June 10,1931, and as security for its payment it. is therein stated (as was stated in all the similar notes signed by Siegel and which at the maturities were replaced by renewals) that “the undersigned (Siegel) has pledged, transferred and delivered to said bank the following property, viz., Assignment of Beneficial Interest Under Liberty Bank Trust No. 770.”

Siegel, when called as a witness of the American Glass Co., testified that the Foreman Bank “went over” to the First Nat. Bank about the time the garnishment proceeding was started; that early in May, 1931, he had several conversations with Hansa at the Foreman Bank concerning his note maturing oh May 9th; that at one of these conversations he told Hansa that he had received notice from the Liberty Bank that the American Glass Co. “had attached mine share, — the l/10th I have in the Liberty Bank,” and that Hansa replied: “If that is the case, no use signing a new note; if you show in default, they will not get this money, and after we get the money in here we will give you, half as I agreed with you.” It will be noticed that this particular testimony of Siegel is contradicted by that of Hansa, who at first refused to extend Siegel’s note which was due on May 9th, but afterward did extend it to June 10th. And Siegel’s testimony is further contradicted by the fact of his signing the extension note maturing on June 10th. Siegel further testified in substance:

About a month after the Foreman Bank “went over” to the First Nat. Bank, I talked with Hansa in the offices of the latter named bank and Hansa introduced me to Mr. Kiddoo of the latter named bank. Hansa explained to Kiddoo “about the assignment and so on.” And Hansa said to Kiddoo: “I suggested no use signing a neiv note; as long as a new note is not signed there is a showing of default and the American Class Co. can’t get the money.” And Kiddoo said: “I think it is all right on that one.” And Hansa “tells me that after the garnishment is taken off you get your half the way I agreed to, and make a new note. ’ ’

Siegel further testified in substance:

I once went to see Kiddoo with the attorney for the American Class Co.; I told Kiddoo that, as long as I' got a half coming on this here, I would appreciate his paying my half to the Glass Go., because its attorney is going to put me in bankruptcy and I would like its claim paid with the half that is coming to me; Kiddoo called up his attorney who was upstairs, but the attorney said “nothing doing.”

This testimony of Siegel, as to his desire to have the claim of the American Class Co. paid, is also contradictory to his former testimony as to his getting his “half” notwithstanding the pending garnishment proceeding. He was also called as a witness for Rosenberg and testified as to how he came to execute the assignment to Rosenberg on April 29,1932, as follows :

“I owed some money to Rosenberg; I don’t remember the amount exactly; it was between $6,000 and $6,500; Rosenberg asked me for the money and I told him, ‘I haven’t got no money except that half I am supposed to get in from my¡subdivision through.the Foreman Bank’; and then Rosenberg said, ‘If that is the case I would like you to give me an assignment of the half you have got coming there, so as to pay off what you owe me’; and then I executed the assignment to him on April 29, 1932.”

On the trial two contentions in substance were made by the beneficial plaintiff (American Glass Co.), also urged here, for a recovery from the garnishee (Liberty Bank). First, the recovery of its entire judgment of $1,360.50, because, as by the Siegel assignment to the Foreman Bank of March 19,1930, Siegel was to retain, ‘ ‘ so long as he was not in default in the performance of his obligations to said bank, ’ ’ a one-half interest in the subsequent payments that were to be made by the trustee (Liberty Bank) of said Trust No. 770, such an arrangement was a fraud, and therefore void, as to Siegel’s other creditors. Second, as to the amount of the $507.15 check of May 8, 1931 (given by the garnishee after the service of the writ), the beneficial plaintiff is clearly entitled to recover in this action one-half of said amount, because, under the terms of the Siegel assignment to the Foreman Bank, one-half of said check belonged to Siegel, — he then not being in default in his obligations to the bank. The trial court, in allowing a recovery by the beneficial plaintiff of $1,360.50, evidently agreed with the first contention. But, after carefully considering the evidence, we are of the opinion that the trial court erred in the particular finding and judgment. It is not claimed, when Siegel made his assignment to the Foreman Bank in March, 1930, that it was not given to secure his bona fide indebtedness to the bank of $35,000. And, under the law, even if he had other creditors at the time, he clearly had the legal right to give a preference to the bank, provided it was given for a valuable consideration and without fraudulent intent. (Third Nat. Bank of Mt. Vernon v. Norris, 331 Ill. 230, 233, 234; Nelson & Co. v. Leiter, 190 Ill. 414, 422.) And we find no evidence of fraud in the giving or receiving of the assignment, or in the giving or receiving of the subsequent renewal notes, or in any of the subsequent transactions between Siegel and the Foreman Bank, or the latter’s successor, the First Nat. Bank.

But we are of the opinion that there is substantial merit in the. second contention of the American Glass Co., viz., that it is entitled to reach by the present garnishment process one-half of the proceeds of said check of $507.15, or $253.57, of May 8, 1931, given by the Liberty Bank to the Foreman-Bank after the service of the garnishment writ. At that time Siegel had kept up with his payments to the Foreman Bank and was not in default, and, under the terms of his assignment to the Foreman Bank, said one-half of the check, or the sum of $253.57, belonged to him, and could be reached by a garnisheeing creditor.

And we are of the opinion that the trial court erred in its finding and judgment in favor of Rosenberg, intervening petitioner, in the sum of $1,559.53. Siegel’s assignment to Rosenberg was not given until April 29, 1932, — more than two years after he had given the assignment to the Foreman Bank, and, hence the Rosenberg assignment was subject and subordinate to the assignment to the Foreman Bank. And there being no fraud in the assignment to the Foreman Bank, nor any fraud subsequent thereto in the transactions between Siegel and the Foreman Bank, Rosenberg is not entitled to recover anything in the present action as against the claims and prior rights of the Foreman Bank, or its successor or assignee, the First Nat. Bank.

It is here urged by counsel for Rosenberg that the judgment in his favor should stand because the present record does not properly present for review any question of fact or of law. The argument is that it does not appear from the bill of exceptions that the intervening petitioner, the First Nat. Bank, (a) made any motion for a new trial, or (b) took any exception to the entry of the judgments of the court, or (c) submitted any propositions of law to be passed upon. In our opinion there is no merit in the contention or arguments of counsel. In Climax Tag Co. v. American Tag Co., 234 Ill. 179, 182, it is said: “A motion for a new trial in eases tried by a court without a jury is neither required nor authorized by law or the rules of practice, and can serve no purpose whatever in preserving questions for review in this court.” (See, also, Sands v. Wacaser, 149 Ill. 530, 535; Trout v. City of Herrin, 245 Ill. App. 346, 349; Pralle v. Metropolitan Life Ins. Co., 252 Ill. App. 460, 467, 468.) And it is not now necessary that it should appear in the bill of exceptions that an exception was taken to the entry of the judgment. (Auto Truck Steel Body Co. v. Chicago Bonding & Ins. Co., 218 Ill. App. 230, 244, 245; City of Lewistown v. Harrison, 282 Ill. 461, 466; Miller v. Anderson, 269 Ill. 608, 617.) And it is not necessary that propositions of law be submitted in non-jury cases in order that a review of the finding and judgment may be had. (Pittsburgh, C., C. & St. L. Ry. Co. v. Chicago City Ry. Co., 300 Ill. 162, 165, 166; Bright v. Riedy, 243 Ill. App. 314, 319; Bitzer v. Southern Surety Co., 245 Ill. App. 295, 296, 297.)

Our conclusion is that the judgments against the garnishee, Liberty Bank, in favor of the beneficial plaintiff and Rosenberg, for $1,360.50 and $1,559.53, respectively, be reversed, and that the following judgments be entered in this court against the Liberty Bank, as garnishee, — one in favor of the beneficial plaintiff, American Glass Co., for $253.57, and the other in favor of the intervening petitioner, First National Bank, for $2,666.46; and that said intervening petitioner, First National Bank, recover its costs— one-half from said American Glass Co. and one-half from said Rosenberg. It is so ordered.

Judgments reversed and judgments entered here.

Sullivan, P. J., and Scanlan, J.,

concur.

Finding of facts: We find as facts in this case that at the time of the service of the garnishment writ (April 25, 1931) the garnishee (Liberty Bank) had moneys or funds in its hands belonging to plaintiff (Siegel), for the use of the American Glass Co., in the amount of $253.57; that at the time of the trial in September, 1932, said garnishee had money or funds in its hands belonging to Siegel’s assignee, Foreman-State National Bank of Chicago, in the amount of $2,666.46; that the First National Bank of Chicago (intervening petitioner), as successor or assignee of the Foreman Bank,- had succeeded to its right to receive such last mentioned amount; that Siegel’s written assignment to the Foreman Bank, dated March 19,1930, was given by him to secure a bona fide indebtedness then owing by him to said bank of $35,000; that said assignment was not made, nor were any subsequent transactions thereunder made, with any intention of defrauding any of Siegel’s other or subsequent creditors; that at the time of the trial Siegel’s indebtedness to the First National Bank (as successor or assignee of the Foreman Bank) amounted to more than $33,373.88, as evidenced by his renewed and unpaid not.e, due on June 10, 1931; that Siegel’s written assignment to Rosenberg (intervening petitioner) of April 29, 1932, was not delivered until more than one year after the service of the garnishment writ herein and until more than two years after Siegel’s said written assignment to the Foreman Bank had been executed and delivered; that said Rosenberg assignment is inferior and subject to said Foreman Bank assignment; and that neither at the time of the service of the garnishment writ nor at the time of the trial in September, 1932, did the garnishee (Liberty Bank) have any moneys or funds in its hands belonging to plaintiff (Siegel), for the use of Rosenberg.


source: Caselaw Access Project

author: Mr. Justice Gridley

license: Public Domain

text:
    The People of the State of Illinois ex rel. Josephine A. Byrnes, Appellee, v. The Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago, Appellant.
    Gen. No. 36,487.
    Opinion filed October 10, 1933.
    William H. Sexton, Corporation Counsel, and George F. Mulligan, Assistant Corporation Counsel, for appellant; George F. Mulligan, of counsel.
    Thomas A. Hamilton, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

In a certiorari proceeding, the respondent, Retirement Board, etc. appeals from an order or judgment of the circuit court of Cook county, entered on October 26, 1932, as follows:

“This cause coming on to be heard upon petition for writ of certiorari, and the motion of respondent to quash the writ issued upon said petition, and, the court having heard the arguments of, counsel and having considered the briefs submitted by counsel in this cause and all parties in interest being now represented by their respective counsel.

“It Is Ordered that the motion to quash the writ of certiorari be and the same is hereby denied. It is further ordered that the action of the Retirement Board, etc., in refusing to place the name of the petitioner upon, or to restore the petitioner to, the pension roll of the said fund, be and the same is hereby reversed, and that the petitioner be restored to said pension roll as of the date of the annulment of her marriage.”

The verified petition of petitioner, filed, April 29, 1932, after stating that it seeks a review of a certain action of the Board of Trustees of the Firemen’s Pension Fund of Chicago, of which board the said Retirement Board, etc., is its successor and composed of the same persons, alleges in substance:

That petitioner married James P. Byrnes, now deceased, on March 17, 1904, while he was a member of the Chicago fire department, and lived with him as his wife until his death on March 7, 1926, during all of which time he was a member of said fire department; that after his death petitioner made application for and was granted a widow’s pension, in accordance with section 10 of an act of the Illinois legislature, passed in 1917 and amended in 1925, entitled “An Act to provide for a firemen’s pension fund and to create a board of trustees to administer said fund in cities having a population exceeding 200,000 inhabitants,” Cahill’s St. ch. 24, If 951 (section as amended set forth); that the section as amended remained in force continuously until July 1, 1931; that petitioner, after she had been granted the pension, “went through a marriage ceremony” with Frank Mawson on April 7,1928, at Crown Point, Indiana; that payments on the pension were made to her “up to and including January 10, 1929,” when said Firemen’s Pension Board, “on notice by petitioner of said marriage ceremony,” discontinued said pension; that petitioner lived with Frank Maw-son intermittently from April 7, 1928, until February, 1930, but not as man and wife; that the purported marriage was annulled in the circuit court of Cook county on June 6, 1930 (certified copy of annulment decree attached); that the Firemen’s Pension Board was duly notified of the annulment, and petitioner filed an application with the board, requesting the reinstatement of her name on the pension roll and the payment to her of her pension from January 10,1929, and thereafter; that a hearing before the board was had, at which petitioner presented evidence of the annulment, but that her application was denied; that the decision of the board “was that the said annulment did not render the subsequent marriage of petitioner void ab initio so as to entitle petitioner to be restored to the pension roll”; and that petitioner asks for a review of that decision, as it “involves a question of law and not of fact.”

The decree of annulment of June 6, 1930, is signed by the Honorable Thomas J. Lynch, one of the judges of the circuit court of Cook county, and was on that day duly entered of record. After stating in substance that as to the issues made by complainant’s bill and defendant’s answer, evidence was heard in open court on May 15, 1930, at which time the respective parties were present by solicitors, the court found, in part, that due notice of the pendency of the suit was had by personal service on the defendant and that the court has jurisdiction of the parties and the subject matter; that the parties, pursuant to a license to solemnize marriage issued by the county clerk of Lake county, Indiana, “took part in a purported marriage ceremony on April 7,1928, at Crown Point, Indiana”; that subsequent to the ceremony the parties never cohabited as husband and wife and that no consummation of the purported marriage was had; that the reason for such non-cohabitation was due to the fact that the defendant “was impotent.” And the court decreed that “the purported marriage ceremony be declared null and void, and it is hereby annulled” and the court further found that “the legal status of complainant did not change as a result of the purported marriage ceremony, and that a legal marriage never existed between the parties.”-

During May, 1932, the respondent, Retirement Board, etc., was duly served with process in the certiorari proceeding, and on May 17, 1932, it appeared by the corporation counsel of the City of Chicago, and 'one of his assistants, and moved to quash the writ. The court’s order appealed from, as first above mentioned, was entered after a full hearing and argument by the respective attorneys on the motion to quash. No evidence was introduced. The present transcript, however, contains what purports to be a stenographic report of the proceedings on the hearing, including statements by opposing counsel and the court, and also the court’s reasons for its decision including references to numerous adjudicated cases. These proceedings are abstracted in appellant’s printed abstract here filed. It appears that after the court (Judge Thomas Taylor) had stated it to be his opinion that “the petitioner is entitled to reinstatement on thé pension roll and to the payment of her pension according to law, and that the ruling of the Pension Board must be reversed, ’ ’ the question arose at what date the payment of her pension should recommence, whether on January 10, 1929 (when it had been discontinued) or on June 6, 1930 (when the annulment decree of petitioner’s marriage to Frank Maws on had been entered), and the following in part occurred:

“Mr. Byrnes (attorney for petitioner): When does the reinstatement take effect?

“Mr. Mulligan (attorney for respondent): There are two questions involved, besides of course the question whether or not the holding of your Honor ipso facto restores her to the pension roll. . . . Does this annulment of the marriage, so far as her pension rights are concerned, commence at the date that the annulment was entered, or would she be entitled to back pension for the period that she lived with this man and received support from him, assuming that she did receive such support?

‘ ‘ The Court : Of course, the gravamen of this petition is the replacing of her on the pension roll. I think the petition asks that her name be put on as of the date it was taken off. . . . But the law will never permit a pensioner to receive, perhaps, two sources of livelihood. I suppose it must be assumed that while she was living with her second husband she was obtaining a livelihood through him, and, equitably considered, was not entitled to a pension from the board. Technically, on the face of this record, with the facts stated in skeleton form, so to speak, in the petition, without evidence, and with the ruling of the court that the annulment destroyed the marriage ab initio, she is entitled to a pension from the time she was taken off the pension roll. But . . . can it be said that she was entitled to that pension during the time that she actually was allied with this man, and from whom she, presumably, was obtaining support? ... I think, if I were the petitioner, I would relinquish all claims to pension when she lived with the second husband, and have it as of the date of the decree of annulment. I think that would avoid controversy in the court of review and would, perhaps, ... he more in consonance with what is equitable in the case.

“Mr. Byrnes: Yes; that is right in line with the New York Sleicher case (251 N. Y. 366, 369) . . . I thank you for your decision.”

From the draft of the order appealed from, as above stated, it appears that petitioner acquiesced in the position taken by the court and did not insist that the payment of her pension should recommence on January 10,1929, rather than when the decree of annulment was entered (June 6, 1930). Furthermore, she has not here assigned any cross errors.

The main contention, urged by counsel for respondent as a ground for a reversal of the order appealed from, is in substance that the same is contrary to law, in that, where a marriage is annulled by the decree of a court, having jurisdiction of the parties and the subject matter, on the ground of the impotence of the husband, such decree does not render the marriage void ab initio, except as between the parties to the marriage. In view of the general current of authority we are of the opinion that the contention is without merit. In 2 Bishop on Marriage, Div. and Sep., 1st Ed., sec. 1596, p. 608, it is said:

“Whether the marriage which the nullity decree pronounces void was truly such or only voidable, after the decree and between the parties it is conclusively regarded as never having existed. Or, to copy from one of our books, ‘if the wife becomes a single woman by operation of law, it is the same as if she had always remained single. ’ ”

In Tiffany on Domestic Relations, Cooley’s 3rd Ed., pp. 57, 58, it is said:

“Where a marriage is merely voidable and voidable by a decree of nullity only, it is valid unless a decree is obtained; and the decree must be made, if at all, during the lives of both parties. Until it is made, the marriage is valid for- all purposes. The children are legitimate; the parties are entitled, respectively, to curtesy and dower; and all other incidents of a valid marriage attach. After a decree of nullity, however, in the lifetime of the parties, the marriage is void ab initio, and not merely from the date of the decree. The children are rendered illegitimate, the parties have no rights in each other’s property, and communications formerly made between them are no longer privileged. In other words, it is just as though no marriage had ever taken place.”

In the case of Clerke v. Menzies, or Matter of Wombwell’s Settlement, 2 Law Rep., Chancery Div. 298, the action was for the return for lack of consideration of 25,000 pounds, which had been paid as a marriage settlement to certain trustees to provide an income to one Wombwell in consideration of his marriage to the daughter of the settlor. It is stated in the syllabus:

“By a settlement made in contemplation of marriage, a father transferred 25,000 pounds to the trustees of the settlement to be held upon trust for him ‘until the said intended marriage,’ and thereafter upon the trusts of the settlement. The marriage took place, but afterwards a decree absolute was made declaring it ‘to be and to have been absolutely null and void’ on the ground of the husband’s impotence.

“Held, that the words ‘until the said intended marriage ’ meant a valid and effectual marriage, and that, as the marriage had been declared null and void ab initio, the settlor was absolutely entitled to the settled funds under the express trust in his favor.”

In the opinion of the court (p. 305) it is said in part: ‘ ‘ The result of a decree of nullity is that not only are the parties not now married, but they never were. There never was any valid marriage. ’ ’

In the case of Steerman v. Snow, 94 N. J. Eq. 9, on a petition for the annulment of a marriage on the ground of impotence, a decree of nullity was entered. And it was decided in substance that a marriage may be annulled under the statute, where there has been discovery only after marriage, or such marriage may be annulled under the inherent jurisdiction of a court of chancery relating to fraud. And in the opinion the court said (pp. 13, 14):

“In 2 Bouv. Law. Die. (Rawle’s Rev.) 527, it is stated that the distinction between a marriage absolutely void, ór one voidable at the election of one or both of the parties, is important; that in the case of the latter the marriage will be treated as valid and binding until its nullity is ascertained and declared by a competent court in a suit instituted for that purpose, during the lifetime of both parties; but the effect of a sentence of nullity, when pronounced, is to render the marriage null and void from the beginning. It appears, therefore, that in either case, when a decree of nullity is pronounced, the status of the parties is as though they had never been married, and the result in the last analysis is the same, so that it is quite immaterial whether the decree is obtained for fraud under the general jurisdiction of the court or under its statutory jurisdiction.”

In Sleicher v. Sleicher, 251 N. Y. 366, it appears that plaintiff (the wife) and defendant (the husband) were married in 1908; that by a separation agreement, made in 1923, defendant promised to pay to plaintiff for her support and maintenance, $400 per month up to June, 1924, and $350 monthly thereafter; that in case of divorce defendant agreed that an allowance for alimony at the same rate be incorporated in the decree “to continue so long as she remains unmarried”; that subsequently a Nevada court, having jurisdiction, granted a divorce to plaintiff; that by the decree all demands for alimony, maintenance and support were declared to be fixed and prescribed by the separation agreement, made a part of the decree; that on August 16, 1924, plaintiff contracted a second marriage with one Hannum and thereafter she brought a suit in New York to annul the marriage on the ground of fraud, and in August, 1927, an annulment was granted, the basis of the decree being the fraud of Hannum “in fraudulently concealing from the plaintiff the fact that prior to, up to and including the time of said marriage, he was insane”; that upon plaintiff’s marriage to Hannum all alimony payments ceased and were never resumed; and that plaintiff’s present action, begun in February, 1928, was brought to recover all unpaid instalments, she claiming that her right to alimony revived when the second marriage was annulled for fraud, avoiding it from the beginning, and that the effect of the revivor was not merely to charge defendant with the prospective liability for instalments falling due from the time of the annulment of said second marriage, but to charge him retrospectively with instalments lawfully withheld while the second marriage was in force. It was held in substance that while a voidable marriage is by a decree annulling it rendered void ah initio, it would be inequitable in the particular case to allow the plaintiff two means of support during the continuance of said second marriage. During the course of the opinion the court said (p. 369):

“A marriage procured by fraud is voidable, not void. Even so, annulment, when decreed, puts an end to it from the beginning (Matter of Moncrief, 235 N. Y. 390; American Surety Co. v. Conner, 251 N. Y. 1). It is not dissolved as upon divorce. It is effaced as if it had never heen. From then on, payments to either spouse may be demanded and must be made on the footing of its nullity. This is true, according to the holding of some courts, where bequests of income are to be paid until remarriage. (Citing cases.) It is true and for like reasons where installments of alimony are to be paid under a judgment. A marriage is unreal if procured by force or fraud.

“The retroactive effect of rescission from the beginning is not, however, without limits, prescribed by policy and justice. These limits are not unknown even in controversies between parties or privies to the rescinded act . . . , but they have their typical application to the rights and duties of a stranger. . . . The defendant, the first husband, must now comply with the mandate of the judgment of divorce and provide for his former wife as for one who has not remarried. This does not mean, as we view it, that he must provide for her during the years when the voidable remarriage was in force and unavoided.”

In the case of Rubin v. Joseph, 213 N. Y. S. 460, decided by the appellate division of the Supreme Court, it appears that plaintiffs had executed a bond and mortgage to defendant in consideration that defendant would marry plaintiff’s daughter. The marriage was performed. After defendant and the daughter had lived together for about two years she obtained a decree annulling the marriage on the ground of defendant’s impotency. Thereafter plaintiffs brought their action in equity to obtain the cancellation of the bond and mortgage and ultimately a decree was rendered in their favor. The court held in substance that the decree annulling the marriage, in which case he appeared and defended, was conclusive against him in plaintiffs’ present action that the marriage was void ab initio, that defendant had not complied with his agreement and that the bond and mortgage should be canceled because of failure of consideration.

In the Illinois case of Butler v. Butler, 161 Ill. 451, the decision is based upon similar principles. It is there decided (a) that a marriage between persons while in a state of slavery is not binding upon the parties to it if repudiated upon emancipation; (b) that a second marriage by a slave after obtaining Ms freedom disaffirms a former marriage contracted in slavery and renders it null and void from the beginning; and (c) that the children of a marriage, contracted while the father was a slave and which marriage was dis-affirmed by a second marriage after he became free, are incapable of inheriting from the father, and that the widow and children of snch second marriage will inherit. The court said (p. 460, italics ours):

“Following the almost unbroken line of authorities on the question, we are of the opinion that the marriage of Allen Butler to Mariah Conway was lawful, and that she is his lawful widow. It follows that the complainant, Mary Ann Butler, has no interest in his estate. Upon well recognized legal principles it follows, also, that the disaffirmance of the slave marriage rendered it null from the beginning, to the same extent as would a decree of nullity rendered by a court of competent jurisdiction between parties incapable in law of contracting a valid and binding marriage, and made the issue of the slave marriage incapable of inheriting from the father, in the absence of any statute to the contrary.”

Another contention of counsel for respondent, urged as a ground for reversal of the order of the circuit court, is that “the court has no power to order a widow’s name placed upon a pension roll when the right of such widow to a pension has been revolted by the legislature.” Before discussing this contention we will set forth certain statutes passed by our legislature. When petitioner first made application for and was granted a widow’s pension after March, 1926, in accordance with the then existing act of 1917, section 10 of that act, as amended in 1925, provided in part as follows (Cahill’s St. 1927, ch. 24, ¶ 951, p. 515):

“If any fireman shall die from any cause while in the service, . . . , or if any fireman shall die from any canse during retirement on account of disability or during retirement after 20 years ’ service and while in good standing, as provided in this Act, and shall leave a widow, . . . , said board of trustees shall direct the payment from such pension fund of the following sums of money monthly:

“(a) To such widow the sum of forty-five dollars per month; provided, that no pension shall be allowed to the widow of any deceased fireman who has married such fireman subsequent to the date of his retirement on pension; and provided further that the pension granted to the widow of any fireman shall cease if such tuidow again marries. ...”

After petitioner’s marriage to Mawson at Crown Point in April, 1928, had been annulled by the decree of the circuit court on June 6, 1930, and after petitioner had applied to the then Pension Board for the reinstatement of her name on the pension roll, and after the board had denied her application on the ground that the annulment did not render her said marriage to Mawson “void ab initio so as to entitle petitioner to be restored to the pension roll,” but about a year before petitioner had filed her petition in this certiorari proceeding, our legislature passed a new and more comprehensive act, in force July 1, 1931, entitled “An Act to provide for the creation, setting apart, maintenance and administration of a firemen’s annuity and benefit fund in cities having a population exceeding 500,000 inhabitants.” By the act the old Pension Board was succeeded by the present Retirement Board, etc., respondent herein. In section 6 of the Act (Cahill’s St. 1931, ch. 24,1f 941(6), p. 575) the powers and duties of the board are defined, and in subsection (g) the board is given power to consider and pass upon all applications for pensions, etc., including those arising under prior acts relating to pensions, etc. And it is in said subsection further provided :

“The retirement board shall have exclusive jurisdiction in all matters of claims under this Act, and its actions on such claims shall be reviewable by certiorari only. ’ ’

In section 52 of the Act (Cahill’s St. 1931, ch. 24, ¶ 941(52), p. 593) the act of 1917, as amended, is specifically referred to, and there are various provisions concerning claims for pensions, etc., arising under said old act. And at the end of said section it is stated:

“It is the intention of this section that any and all rights and benefits granted under the certain act entitled” (here is set forth the title of the act of 1917) “filed June 14, 1917, in force July 1, 1917, as subsequently amended, shall be continued, preserved and secured by and under this Act to all persons to whom such rights or benefits have accrued, or would or could have accrued under said latter Act, subject, however, to the limitation herein provided as to the payment of back pension.”

In section 58 of the new act (Cahill’s St. 1931, ch. 24, 1f 941(58), p. 596), which is headed “Effect of remarriage of widow, ’ ’ the final clause is as follows:

“Neither divorce nor annulment of such subsequent marriage shall entitle such widow to a resumption of any annuity granted to her prior to such marriage.”

Counsel for respondent rely upon this clause of section 58 in urging their instant contention. Stating the well settled principles of law that pensions are but bounties of the government, which may be given, withheld or recalled at the pleasure of the sovereign power, and that a pensioner has no vested legal right to his pension (see 22 Ency. Law, 2nd Ed., p. 658; Eddy v. Morgan, 216 Ill. 437, 449; Frisbie v. United States, 157 U. S. 160, 166) counsel argue in substance, as we understand the argument, that, even though petitioner’s marriage to Mawson was annulled and became “effaced as if it had never been” more than a year prior to July 1, 1931, when the new act became in force, said clause in section 58 discloses such a legislative intent as should prevent any resumption of petitioner’s pension. We cannot agree with counsel’s contention or argument, when consideration is given to the new act in its entirety and particularly to the provisions of section 52 thereof, as above outlined. We do not think that it was the legislative intent, where a subsequent marriage of a former widow pensioner had been held void and annulled long prior to the passage of the new act, and she was then entitled to a resumption of the pension, that in such a case she could not be considered as a proper pensioner. On the contrary we think that the legislative intent was to have such section 58 of the new act apply only to cases where the annulment of the subsequent marriage had been granted after the passage of. the new act.

Counsel for respondent direct our attention to section 5 of the act of 1917, as amended (Cahill’s St. 1927, ch. 24, U 946, p. 514), wherein it is provided that the Pension Board “shall have power (a) to hear and determine all applications for pensions ... . under this Act, and its decisions in such matters shall be final and conclusive and not subject to review or reversal except by the board,” and counsel further contend that because of this provision the circuit court erred in entering the judgment in question. In our opinion the contention is without merit. We understand it to be the law or practice that decisions of such boards in pension applications, etc., are subject to review in proper cases by the courts, particularly where they have acted arbitrarily, or under mistaken views of the law as in the present case. (See Wilke v. Chicago, 212 Ill. App. 414, 420.) Furthermore, our legislature, in subsection (g) of section 6 of said new act of 1931 (Cahill’s St. 1931, ch. 24, f 941 [6]), above mentioned, has recognized such law or practice, but has limited the review of actions of the Retirement Board in pension, etc., matters to “certiorari only.”

After carefully considering the allegations of petitioner’s petition, the pertinent statutes, the exhaustive briefs and arguments of respective counsel and many adjudicated cases, we have reached the conclusion that the circuit court did not err in entering the order or judgment appealed from, as first above mentioned, and accordingly the same is affirmed.

Affirmed.

Sullivan, P. J., and Scanlan, J., concur.


text:
    In Re Estate of Ida Marcoux, Deceased. Edmund J. Bolio, Proponent of the Claimed Last Will and Testament of Said Deceased, Appellee, v. County of Cook, Appellant.
    Gen. No. 36,505.
    Opinion filed October 10, 1933.
    Thomas J. Courtney, State’s Attorney, for appellant; Edgar B. Elder, Assistant State’s Attorney, of counsel.

      Arthur A. Basse and Harry A. Biossat, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

This is the second case appealed to this court involving the estate of Ida Marcoux, deceased. She died at Chicago early in June, 1928, at the age of 68 years or older, without leaving any heirs that diligent search has discovered. She had resided in Chicago continuously since about the year 1880. Shortly after her death Percival B. Coffin, public administrator, was appointed administrator of the estate by the probate court of Cook county and he took possession of all personal property and filed an inventory. It is here stated that the value of the present net estate is in excess of $15,000. It consists of cash in bank, other personal property and certain parcels of real estate, improved or unimproved. The present appellant is the County of Cook, which appeals from an order or judgment of the circuit court, entered December 2, 1932, wherein the court after a trial de novo, without a jury, virtually affirmed the order of the probate court, entered May 14, 1932, admitting to probate a certain claimed last will and testament of Ida Marcoux, deceased, executed at Detroit, Michigan, on October 19, 1877 (where she then resided), which claimed will was first presented for probate in Chicago on December 8, 1930, by the proponent, Dr. Edmund J. Bolio, a resident of Detroit for most of his life, and who at the time of such presentation was of the age of about 85 'years. It is here stated by counsel for the County of Cook in their printed brief that the reason of the county’s contest in the probate court, the circuit court and in this court is that if the will is finally denied admission to probate the entire estate will escheat to the county because decedent died without leaving her surviving any living heir or heirs.

In the probate court the testimony of numerous witnesses produced by the respective parties was heard from time to time during the year 1931, either before an assistant judge (Caplan) or before the probate judge (Judge Horner). A transcript of all the testimony, including certain writings introduced, and also including certain testimony of the proponent in rebuttal heard before Judge Horner on November 7, 1931, was made and filed. Depositions of other witnesses were taken by the respective parties at Detroit and Pontiac, Michigan, at which opposing counsel was present and cross-examined the witnesses. The transcript of their depositions also was filed in the cause. On the record thus made, which is voluminous, there was a hearing during May, 1932, before the then acting probate judge (Judge Sesler). The testimony and writings were read or presented to and considered by him, and on May 14, 1932, the following order, signed by him, was entered:

“This day came the proponent, Edmund J. 13olio, by . . . his attorneys, the Public Administrator by . . . his attorney, and the County of Cook by . . . it& attorneys, and this cause coming on to be heard upon the depositions taken and filed herein, the evidence of witnesses heard in open court and the arguments of counsel, the court . . . doth order, adjudge and decree that the will heretofore filed herein as the last will and testament of Ida Mareoux, deceased, is hereby declared proved, and said will is hereby admitted to record in open court ... as the last will and testament of said Ida Mareoux, deceased.”

From this order the County of Cook prayed and perfected its appeal to the circuit court, where on a hearing de novo without a jury before the Honorable Craig A. Hood, the entire record as made in the probate court was presented or read to and considered by him. No additional evidence was introduced, and on December 2, 1932, the court adjudged that said will “is hereby declared proven and is hereby admitted to record as the last will and testament of Ida Marcoux, deceased.” In apt time the County of Cook . perfected the present appeal.

During the year 1877, and prior thereto, Ida Marcoux was a resident of Detroit, Michigan, living from time to time in various houses or apartments. To some she was known as Ida Cormier and to others as Ida Marcoux. For a time she had lived with one Joseph Cormier and afterward she lived with one Charles Marcoux, a captain or engineer on boats plying on the Great Lakes. Whether she ever was legally married to either is uncertain. No children were born unto her. Cormier moved away from Detroit and subsequently died. About June 1, 1877, one John C. Hechtner either committed suicide by means of a revolver or was shot in the apartment then occupied by decedent. The Detroit newspapers on the following days contained lengthy accounts of the details of the tragedy and decedent received unpleasant notoriety. At this time she had friendly relations with Edmund J. Bolio who thereafter by various acts rendered her kindly assistance in her troubles. On October 19, 1877, when the claimed will was executed, Bolio operated a drug store in. Detroit. He afterward became a doctor of medicine and from 1884 until sometime in 1925, continuously practiced medicine and surgery in Detroit, when he retired from active practice because of failing eyesight. His good reputation as a druggist, a physician and surgeon and as a man, in the particular communities in which he from time to time resided, is not seriously questioned. About the year 1880, decedent, accompanied by Charles Marcoux, left Detroit and took up their residence in Chicago, where they held themselves out as husband and wife and were so considered by their friends and acquaintances there. No children were there born nnto them. At one time a nephew of Charles Mareoux lived with them. Shortly prior to 1890, both Charles Mareoux and the nephew were on a vessel on the Great Lakes and during a storm both lost their lives by the sinking of the vessel. ■

After Charles Mareoux’s death and some time prior to 1893, one Frederick A. Matthews deserted his wife and three daughters and went to live with Ida Mareoux at her then home in Chicago. During the year 1893, Mrs. Matthews obtained a divorce from him. Thereafter Matthews continued to live with decedent until her death in June, 1928. They never were legally married. They never held themselves out to be married, and decedent retained the name of Ida Mareoux and was always so called by her friends and neighbors. No children were born unto them. During July, 1928, Matthews filed two petitions in the probate court— one to obtain possession of certain furniture, etc., and the other to obtain possession of certain currency and a Liberty Bond, claimed to be owned by him and which decedent had deposited for safe-keeping in her box in the vault of a Chicago safety deposit company. The administrator did not contest these petitions and subsequently, by order of the .probate court, Matthews received the claimed property. About nine months later, on April 10, 1929, Matthews filed in the probate court another petition, in which he made claim for certain specified sums of money and also for another large sum, in substance for the “reasonable value of his services” in managing and conserving decedent’s property for the period from about 1887 until her death, under “a continuing oral agreement,” whereby she directed him so to do and promised him, in consideration of his services, to execute a will, bequeathing and devising to him all of her property upon her death, but which will never was executed. This petition or claim was contested by the administrator, and during November, 1929, there was a hearing in the probate court, and on November 30, 1929, the court entered an order, adjudging that Matthews recover from the administrator, out of the assets of the estate, “the sum of $36,400, which is hereby allowed as a claim of the 6th class against the estate.” From the judgment the administrator perfected an appeal to the circuit court, where during March, 1930, there was a trial de novo without a jury during Matthews’ lifetime. On March 31, 1930, the circuit court found the issues against Matthews and entered judgment against him, disallowing his said claims in toto. Pending his appeal to this court he, on May 23, 1930, died at the age of about 85 years, leaving him surviving his said three daughters, one of whom was Mrs. Nellie Kirby, who shortly thereafter was appointed executrix of his last will (executed after the death of Ida Marcoux), and Mrs. Kirby, as such executrix, was substituted as plaintiff or claimant in the circuit court case, and thereafter she duly perfected the appeal from said judgment of March 31, 1930. Subsequently, on May 19,1931, this court affirmed said judgment, for reasons stated in an unpublished opinion. (Kirby, as executrix, etc. v. Coffin, as administrator, etc., 262 Ill. App. 628.) Thereafter Mrs. Kirby applied to the Supreme Court for a writ of certiorari, but her application was denied (262 Ill. App. p. xiv.)

On December 8, 1930, after the circuit court had decided against the allowance of Matthews’ claims against decedent’s estate, Doctor Bolio presented the claimed will to the probate court, accompanied by his verified petition' praying that the document be admitted to probate, etc. It appears from the testimony of two witnesses, called by the County of Cook and employed by it as investigators, and who first met Doctor Bolio in Detroit in April, 1930, that at that time Doctor Bolio did not know that Ida Marcoux had died until so informed by them. A photostatic copy of the claimed will is contained in the present transcript. It shows on its face that it is an old document. The edges of the paper are worn and darkened by age, and in some places slightly torn. All of the writing is in pencil, including the signatures of the testatrix and the two witnesses. The document is as follows:

“Detroit, Mich.

Oct. 19th, 1877.

“I, Ida Marcoux, bing off Sound Mind, give and bequeth to Edmund J. Bolio all my belongs after my death, he bing the only tru friend who stod by me inn my recent and continud truble when the whole world seemed to be aginst me. Singned and in pres off.

(Signed) Nolton Stoddard

Charles E. Krum (Signed) Ida Marcoux.”

The principal witness called by proponent as to the time and place of the execution of the instrument, as well as to the details thereof, was Thomas J. Noyes, a boy slightly over 10 years of age at that time. His testimony was given in the probate court before assistant Judge Caplan on February 10, 1931. He was there cross-examined at great length, and he gave other testimony on further cross-examination in a deposition taken in Detroit on May 28, 1931.

Some of his testimony on direct examination is as follows:

“I have lived in Detroit all my life. I will be 64 in July (1931). I have no business now. I am retired from the Detroit Fire Department, where I served 25 years. I knew Ida Marcoux. I also knew Nolton Stoddard. I did not know Charles E. Krum to speak to him. T was present at the time this instrument was executed. At the time it was signed there were present Ida Marcoux, Stoddard, Krum, Dr. Bolio and myself. It was signed in Dr. Bolio’s drug store, at 18th and Baker streets, Detroit. . . . Ida Marcoux then lived next door to the drug store. I saw her in the store frequently. I used to deliver medicines for the doctor and I also washed bottles for him. . . . Stoddard used to come into the store quite often. ... At the time he signed the will as a witness he was about 60 years of age. ... I should think Krum at that time was about 45. . . . Nolton Stoddard is dead years ago. I don’t know whether Krum is living or dead. I heard he died in an asylum. I have known Dr. Bolio ever since I was 5 years old, I guess, and continuously up to the present time. He is now about 85 or 86 years of age .... This instrument is in the same condition, so far as I know, as on the day it was signed. ... It was signed in the presence of Ida Marcoux, and she signed it in the presence of Stoddard and Krum. . . . Stoddard made it out and signed it, then Ida Marcoux signed it and then Mr. Krum. . . . They all signed in the presence of each other. I don’t know what business Stoddard was engaged in at that time. ... I know that Krum was Superintendent of the Baker street car line. Both of these men were of good moral character.”

Portions of Noyes’ testimony on cross-examination are as follows:

“I was in the store at the time the will was written. I was not called in and told that a will was being executed. I knew this was a will because I was a ‘nosey’ kid. I saw several people standing around there and I watched what they were doing. Stoddard wrote the will first and then signed it. Ida Marcoux signed it last, I think. I wouldn’t be certain. . . . The three of them got up to the show case and the doctor was behind the show case. I saw that thing made out. Stoddard did the writing. The paper was read to Mrs. Marcoux. Stoddard read it. She said it was all right. Dr. Bolio was behind the counter. The others were outside the counter. Dr. Bolio was facing the others. I was about 5 or 6 feet from the show case. I was there when the paper was signed. If I recall right, after it was signed she folded it up and handed it to the doctor and told him to put it into the safe. I heard her say that. ... At the time I was a good sized boy for 10 years old. ... I was tall enough to see over that counter. ... I knew at that time what a will was and what the purpose of it was. When I was 10 years old I was in the fourth grade in the public school. My memory is very clear as to what happened that day. . . . It is not a fact that I was born on July 16, 1871. Having examined the papers shown me I will still say that the date of my birth was July 16, 1867.”

In the probate court no attempt was made by the contestant to contradict the facts, as testified to by Noyes, as to the execution of the will, etc., except to attempt to show by certain written documents, some introduced before assistant Judge Caplan and certified copies of others attached to the depositions of certain witnesses taken in Detroit, that in all probability Noyes was not born until July 16, 1871, and, hence, was only slightly over six years of age on October 19, 1877, and too young to have observed or understood the facts as testified to. And counsel for the contestant contended, as they here contend, that Noyes’ testimony tended to show that the instrument, purporting to be decedent’s will, was a fraudulent one. After carefully considering the documents mentioned and noticing the many contradictions therein contained, and considering other evidence introduced by proponent, we are of the opinion that it sufficiently appears that Noyes was in fact over 10 years of age when the will was executed, that his testimony is truthful and that said will is not a forged or fraudulent one.

However, Noyes’ testimony alone would N not warrant the admission of the claimed will to probate. Sufficient proof under the provisions of section 6 of the Illinois Act in regard to Wills (Cahill’s St. 1931, ch. 148, If 6, p. 2762) should be had. It is provided in that section as follows:

“In all cases where any one or more of the witnesses of any will, testament or codicil, as aforesaid, shall die, be insane, be blind, or remove to parts unknown to the parties concerned, so that his or her testimony can not be procured, it shall be lawful for the County Court, or other court having jurisdiction of the subject matter, to admit proof of the handwriting of any such deceased, insane, blind or absent witness, as aforesaid, and such other secondary evidence as is admissible in courts of justice to establish written contracts generally in similar cases; and may thereupon proceed to record the same, as though such will, testament, or codicil had been proved by such subscribing witnesses, in his, her or their proper persons.”

In the case of Glos v. Schildbach, 344 Ill. 23, in which an order of the circuit court admitting a will to probate was affirmed, our Supreme Court, after citing certain of its prior decisions and distinguishing the case of Hill v. Chicago Title & Trust Co. (322 Ill. 42), said in part, on pages 33 to 35, inclusive:

“The decisions which have been hereinbefore cited are not intimations or dicta but direct decisions on the points in issue in the cases cited that proof that the signature of a deceased witness subscribed to the instrument in question was in his handwriting was prima facie sufficient; that the death of the witness merely changed the form of proof and permitted secondary evidence to be introduced of the due attestation and execution of the will, which were then to be shown, as it would be in case of deeds, by proof of the handwriting of the witness; that it was to be presumed that the witness duly attested the will in the presence of the testator and that the formal requirements of execution and attestation were complied with. The prima facie case is, of course, open to rebuttal, but in the absence of contradiction the will is entitled to be admitted to probate. . . . The case of Hill v. Chicago Title & Trust Co., supra, did not overrule these cases. The fact that the legislature provided in section 6 for the admission of secondary evidence in case of the death of one or more of the attesting witnesses and the admission of the will to probate in such case as though it had been proved by the subscribing witnesses, necessarily modifies, in cases where one or more of the attesting witnesses have died, the requirement of the oath of two áttesting witnesses. . . . Moreover, section 2 of the Wills Act has been modified by the amendment of section 13, which provides that when the probate of any will and testament shall have been allowed or refused by any county or probate court, on appeal from the order allowing or refusing probate to the circuit court the party seeking probate of the will may support it by any evidence competent to establish a will in chancery, and it has been repeatedly held that on the hearing in the circuit court on the question of the due execution of the instrument involved, the question of fact presented is controlled by the same rule and presumption which control the trial of other questions of fact, and that the instrument should be admitted to record if its genuineness and due execution are established by evidence competent to establish the will in chancery. (Citing In re Will of Porter, 309 Ill. 220; Norton v. Goodwine, 310 id. 490.) ”

In the probate court in the present case the proponent introduced much evidence showing that the signature of the testatrix to the instrument was her genuine signature and that the signatures of the two subscribing witnesses (Stoddard and Krum) were their genuine signatures. The transcript of this evidence was reintroduced on the hearing in the circuit court. And the evidence introduced by the contestant in rebuttal did not directly contradict proponent’s evidence on these issues, but only tended to create mere suspicions as to the genuineness of said signatures, and, generally, as to the instrument not being a bona fide one but a forged and fraudulent one. We are satisfied, after careful consideration of the entire evidence, that said signatures of the testatrix and the two witnesses are respectively genuine, and that the instrument was executed as the will of the testatrix.

The contestant also here contends, as it did in the circuit court, that while the evidence discloses that the subscribing witness (Stoddard) is dead, it does not sufficiently disclose that the other witness (Krum) is either dead or has removed “to parts unknown to the parties concerned.” In our opinion, under the evidence, there is no merit in the contention. And equally without merit, in our opinion, is the contestant’s further contention that the evidence does not sufficiently disclose that the Ida Marcoux, who died in Chicago in June, 1928, was the same person who as testatrix signed the instrument in question in Detroit, Michigan, on October 19, 1877.

Our conclusion is that the order or judgment of the circuit court of December 2, 1932, admitting the said will to probate, etc., as above stated, should be affirmed. It is so ordered.

Affirmed.

Sullivan, P. J., and Scanlan, J., concur.


author: Mr. Justice Scanlan

text:
    Pittsburgh Plate Glass Company, Appellee, v. Blue Island Trust & Savings Bank, Appellant.
    Gen. No. 36,380.
    Opinion filed October 10, 1933.
    W. Otto Wielgorecki, for appellant; Walter F. Briody, of counsel.
    A. S. and E. W. Froehlich, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

Plaintiff sued defendant in trespass on the case. The case was tried upon the first count of the declaration, to which defendant filed the plea of the general issue. In a trial by the court defendant was found guilty and plaintiff’s damages were assessed at the sum of $1,000. Judgment was entered upon the finding and defendant has appealed.

The first count of the declaration alleges, in substance, that at the time of the death of one Alfred Brunner he was indebted to plaintiff in the sum of $1,000; that Brunner died January 28, 1929, leaving property sufficient to pay Ms just debts; that on February 18, 1929, letters of administration were duly issued upon his estate to defendant and that the latter, during the period of probate of said estate, continued to act as administrator of the estate; that on August 31, 1929, “plaintiff caused to be prepared, sworn to and executed, in due form of law, a claim in the sum of One Thousand Dollars against the estate of said Alfred Brunner, deceased, and did on to-wit: said last mentioned' date present the same to the defendant; whereupon the defendant did then and there accept said claim so presented to it, and did state to the plaintiff that it had received claims from other creditors against said estate, and did then and there well and truly promise the plaintiff that it would cause the plaintiff’s said claim, together with other claims in its hands against said estate, to be duly filed in court against said estate. By reason whereof, the plaintiff did take no other or further action to cause a claim to be filed against said estate within the year immediately following the date of the granting of said letters to the defendant, but did wholly rely upon the promises and assurances of the defendant above set forth. Nevertheless the defendant did, notwithstanding its said promises, carelessly and negligently fail and neglect to file said claim of the plaintiff in said Probate Court of Cook County against said estate within the period of one year from and after February 18, 1929. By reason whereof the plaintiff was not permitted by law to share in said estate of Alfred Brunner, deceased, as a creditor thereof, but did wholly lose its said rights as such creditor, and has thereby suffered damages in a large sum to-wit: the sum of One thousand dollars with interest thereon at the rate of five per cent per annum from and after February 18, 1930”; to the damage of plaintiff, etc.

It was conceded that the estate of Brunner was solvent and able to pay the claim of plaintiff, had it been filed in apt time, and it is further conceded that the claim was a meritorious one. As to the facts of the case it is sufficient, for the purposes of this appeal, to state that plaintiff introduced evidence tending to prove that it delivered to defendant, as administrator of the estate of Brunner, a formal claim against the estate; that at least one official of defendant bank examined the claim and informed the messenger that it was correct and that he might so report to plaintiff; that the messenger requested an official of the bank to file the claim against the estate in the probate court; that an official of the bank stated to the messenger that the claim was “all right” and then filed it in a cabinet in the bank “with other papers concerning the same estate ’ ’; that the messenger asked the bank official to see that the claim was properly filed in the probate court, to which the latter answered, “Yes,” and that the messenger could report back to the plaintiff that “everything was O. K.” It is also conceded that defendant did not file the claim in the probate court. Plaintiff also offered testimony to the effect that after the time for filing claims against the estate had expired, the attorney for plaintiff asked the cashier and _ trust officer of defendant company, who had had charge of the estate of Brunner, why plaintiff’s claim had not been filed in the probate court, to which question the said officer answered: “I got the claim all right, but I didn’t file it because there weren’t any assets there anyhow.”

At the close of plaintiff’s evidence defendant moved for a finding in its favor on the ground “that the evidence did not make out a cause of action for the plaintiff. ’ ’ This motion was denied and defendant renewed the motion at the close of all the evidence and now contends that the court erred in denying it. Defendant states: “There is an entire failure of proof on two of the elements which are vital to plaintiff’s cause of action. One of these is a promise or undertaking on the part of defendant. The other is the presence of a consideration for such undertaking or promise. There is no evidence whatever on either of these items.” While it is true that the defendant introduced evidence tending to prove that- it did not promise or undertake to file the claim in question, nevertheless, the evidence introduced by plaintiff tended to prove that it did so promise and undertake. The vital question in the case, however, is involved in the contention of defendant that ‘ a promise for which there is no consideration is gratuitous and does not create any legal responsibility,” and that the instant case is governed by this familiar principle of law. Plaintiff concedes that defendant’s contention states a correct general principle of law, but it argues that-there are certain exceptions to the same and that the case falls within the exceptions, and it cites a number of cases in support of its position. The answer of defendant to this position of plaintiff is that the action is brought for the alleged nonfeasance of defendant and that an action will not lie against one who undertakes to do an act for another without reward, for mere nonfeasance. The allegations in the declaration relating to the alleged duty of defendant to file the claim are as follows:

“Whereupon the defendant did then and there accept said claim so presented to it, and did state to the plaintiff that it had received claims from other creditors against said estate, and did then and there well and truly promise the plaintiff that it would cause the plaintiff’s said claim, together with other claims in its hands against said estate, to be duly filed in court against said estate. . . . Nevertheless the defendant did, notwithstanding its said promises, carelessly and negligently fail and neglect to file said claim of the plaintiff in said Probate Court of Cook County against said estate within the period of one year from and after February 18, 1929.”

The gist of plaintiff’s claim, under count one, is the promise of defendant to file and that it did “negligently fail and neglect to file said claim.” The doctrine of gratuitous agency seems to be well settled and the line of demarcation between liability and nonliability of gratuitous agents plainly drawn. In Thorne v. Deas, 4 Johns. (N. Y.) 84, plaintiffs owned a half interest in a vessel and the defendant owned the other half. The vessel was about to start on a voyage and one of the plaintiffs spoke to the defendant about the necessity of procuring insurance. The defendant voluntarily undertook to procure insurance for the vessel on the voyage but neglected to do so, and the vessel was lost. Plaintiffs brought an action on the case against the defendant for his negligence in not procuring the insurance. In his opinion Chief Justice Kent reviews all of the leading common law cases bearing upon the subject and states (pp. 96 & 97):

“The chief objection raised to the right of recovery in this case, is the want of a consideration for the promise. The offer, on the part of the defendant, to cause insurance to be effected, was perfectly voluntary. Will, then, an action lie, when one party intrusts the performance of a business to another, who undertakes to do it gratuitously, and wholly omits to do it? If the party, who makes this engagement, enters upon the execution of the business, and does it amiss, through the want of due care, by which damage ensues to the other party, an action will lie for this misfeasance. But the defendant never entered upon the execution of his undertaking, and the action' is brought for the nonfeasance. ... A short review of the leading cases will show, that, by the common law, a man datary, or one who undertakes to do an act for another, without reward, is not answerable, for omitting to do the act, and is only responsible when he attempts to do it, and does it amiss. In other words, he is responsible for a misfeasance, but not for a nonfeasance, even though special damages are averred.” In Marks v. Nambil Realty Co., Inc., 245 N. Y. 256, plaintiff was the tenant of the ground floor and cellar of a building, and a flight of stairs leading to the cellar fell out of repair. The defendant, the landlord, was notified of the defect and promised to correct it. In his opinion, Chief Justice Cardozo says (pp. 257-8):

“The promise was gratuitous, for the stairs were not for the common use of all the occupants of the building, but were wholly within the premises demised. . . . The landlord, however, did repair, and made a bungling job of it.....The plaintiff expressed misgivings as to the safety of the prop, but was assured by the landlord’s agent that it would ‘last forever.’ The event belied the prophecy. Step and prop collapsed under the burden of the plaintiff’s weight. He was thrown to the ground, and suffered injuries for which he sues. The landlord, though a volunteer in making the repairs, is liable, none the less, for negligence in making them. ‘It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all’ (Glanzer v. Shepard, 233 N. Y. 236, 239). The distinction in such cases' is the old one between nonfeasance and misfeasance (Thorne v. Deas, 4 Johns. 84, 96; Siegel v. Spear & Co., 234 N. Y. 479, 483; Bohlen, Studies in the Law of Torts, p. 80). A landlord in these circumstances is not charged with liability on the basis of the non-performance of a voluntary promise. He is charged with liability because having chosen to perform he has thereby become subject to a duty in respect of the manner of performance.”

(See also Harriman v. N. Y., C. & St. L. R. R. Co., 253 N. Y. 398; Glanzer v. Shepard, 233 N. Y. 236.) In 1 Mechem on Agency (2d ed.) 920, Sec. 1258, the author states:

“If in such a case the agent refuses to enter upon and perform the service at all; if his default consists in the mere not doing of a thing which he had promised to perform, and it be not a case where the law imposes upon him the duty to perform it, the fact that the performance was to be gratuitous, that the promise to perform was entirely without consideration, will furnish a complete defense to a claim for damages on account of such default. This is upon the familiar ground that the non-performance of a gratuitous ex-ecutory contract constitutes no cause of action. But where, on the other hand, the agent has entered upon the performance of the service, although it be gratuitous, it then becomes his duty to conform to the instructions given. If he were not willing to do so, he should have declined to serve; but having entered upon the performance of the service, he must obey instructions, and a failure to do so, will subject him to liability for the loss or damage occasioned thereby.”

In Bellemire v. The Bank of the United States, 4 Whart. (Pa.) 105, 113, the rule is thus stated:

“Though the gratuitous acceptance of an agency is a consideration for an implied undertaking against misfeasance, it requires a valuable consideration to support an action for nonfeasance.”

In support of its position plaintiff cites 2 C. J. 717, sec. 372;. Barile v. Wright, 256 N. Y. 1, 4; Meyerson v. New Idea Hosiery Co., 217 Ala. 153, 157; Isham v. Post, 141 N. Y. 100, 104-5. The citation from Corpus Juris accords with the rule laid down by Mr. Justice Kent. In Barile v. Wright (opinion by Mr. Justice Cardozo) the defendant was bound because “he entered upon the business of his agency, took out the promised policy and exacted money from his principal to make him whole for his expense. He could not do these things in performance of the mandate, and win exemption thereafter if performance was remiss or ineffective (Isham v. Post, 141 N. Y. 100, 105, 106; Marks v. Nambil Realty Co., 245 N. Y. 256).” In Meyerson v. New Idea Hosiery Co., it appeared that the agent performed the agency negligently and as a proximate consequence of such negligence caused damage to his principal. In Isham v. Post (referred to by Mr. Justice Cardozo in Barile v. Wright) the plaintiff sued to recover damages for the negligent misfeasance of the agent. The plaintiff also cites McNevins v. Lowe, 40 Ill. 209, hut this case merely holds that where one not professing to he a physician nor practicing as such is ‘ ‘ asked his advice as a friend or neighbor, he does not incur any professional responsibility.”

In the instant case there is no evidence tending to prove that defendant performed any act in furtherance of its promise to file. In fact, the declaration is based upon the theory that defendant promised to file and failed to file, and the demurrer to it should have been sustained. After giving full consideration to the material question involved in the present appeal, we have reached the conclusion that neither the first count of the declaration, upon which the case was tried, nor the evidence makes out a prima facie case for plaintiff and therefore the court erred in denying the motion of defendant for a finding in its favor at the close of all the evidence.

Defendant has strenuously argued the further contention that it is the duty of a creditor of an estate to present his claim to the probate court if he wishes to participate in the assets of the estate; that he is presumed to know the law in this respect and cannot impose the duty of filing upon the administrator by delivering a claim to him; that it is the duty of an administrator to defend against claims and that it would be contrary to the best interests of an estate and against the policy of the law to permit administrators to present claims against estates. While there is much force in this contention we do not deem it necessary to pass upon the same.

The judgment of the superior court of Cook county will be reversed.

Reversed.

Sullivan, P. J., and Gridley, J., concur.