text:
    Louise Hickox Pickering, Executrix of Last Will and Testament of Louise B. Hickox, Appellant, v. Harris V. Hickox et al., Appellees. Harris V. Hickox et al., Appellees, v. Louise Hickox Pickering, Individually and as Executrix of Last Will and Testament of Louise B. Hickox, Deceased, Appellant.
    Gen. No. 9,217.
    Heard in this court at the October term, 1939.
    Opinion filed January 15, 1940.
    Opinion modified and rehearing denied February 29, 1940.
    Edward Pree, of Springfield, for appellant.
    A. M. Fitzgerald, Carl A. Sorling and Catron & Hoffmann, all of Springfield, for appellees.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

Louise Hickox Pickering, as executrix of the will of Louise B. Hickox, her deceased mother, filed a complaint at law in the circuit court of Sangamon county, Illinois, seeking recovery for the benefit of said estate of certain moneys alleged to be due from Harris V. Hickox, Norman B. Hickox and Catherine Hickox Moore, her brothers and sister, and the Springfield Marine Bank, as trustee, under the terms of certain written instruments and agreements theretofore entered into between said parties, to which complaint answers and a counterclaim praying equitable relief were interposed by said defendants and issues joined thereon. The cause was referred to and heard by the master in chancery, to whose report objections and exceptions were duly filed and overruled, and the master’s report, findings and conclusions were approved. A decree was thereupon entered against plaintiff in the original complaint and granting* the equitable relief sought in defendants ’ counterclaim, from which decree the plaintiff has appealed to this court.

Harris V. Hickox, Sr., had departed this life intestate in 1931, leaving him surviving Louise B. Hickox, the above decedent, as his surviving widow, and the above-named plaintiff and defendants as his only children and heirs at law. The estate consisted principally of the homestead residence at 529 South Fourth street in Springfield, Illinois, together with other valuable real estate located principally in said city and of personal estate of an estimated value of $18,000.

Subsequent to his death, his said widow and children entered into a written agreement dated January 10, 1931, appointing Harris V. Hickox, one of the sons, as their agent and therein authorized him to rent, manage and control all of said real estate and provided that none of the same should be sold unless such sale was agreed to by a majority in interest of said parties. It was also provided therein that the widow, Louise B. Hiekox, might occupy and use the above-mentioned residence property without payment of rent as long as she so desired and was to keep the same in repair and pay taxes thereon. One third of the net income from the real estate was therein made payable to her and the residue in equal parts to and among the four children. The contract was to remain in full force and effect until the death of Louise B. Hiekox or five years from the date of such agreement, and to become automatically renewed annually until one or more of said parties had given written notice to the others of objection to such renewal at least 90 days before the anniversary of the death of Louise B. Hiekox or upon the expiration of said five-year period.

On February 4, 1933, a subsequent written contract was entered into by said parties wherein it was provided that in addition to her one-third interest in said estate, the widow was to have a right of homestead in the above residence property, but might reside elsewhere if she so desired and would not thereby lose or waive her right of homestead.

Subsequently, during March, 1934, by agreement of said parties, certain real estate was conveyed to the Lee and Harris Hiekox Building Corporation and certificates for 780 shares of capital stock of no par value was issued as follows: 130 shares to Louise B. Hiekox; 65 shares to each of her said four children, the remaining* half of 390 shares being issued to one Lee Hiekox, who held an undivided one-half interest in fee simple in said real estate. The certificates of stock issued to said Louise B. Hiekox and children bore an endorsement setting*' forth that they were held subject to the terms of paragraph five of their above contract which had been entered into on January 10, 1931, and which stock certificates were issued in lieu of the interests or the said parties in said real estate.

Paragraph five of said contract provided in substance that none of the parties thereto should sell his or her interest in said real estate or any part thereof during the term of the agreement or any renewal thereof unless offered to the other parties at the agreed sale price thereof, under which contract Harris V. Hiekox continued to act as agent in connection with the remaining real estate not so transferred to said corporation.

During the latter part of 1933 and the early part of 1934, further negotiations took place between Louise B. Hiekox and the children with reference to an amicable-division of the remaining real estate and shares in the building corporation. The real estate was duly appraised and a value placed upon the stock certificates, and Harris V. Hiekox was thereupon authorized to have the necessary deeds and documents prepared in compliance with such tentative agreements of the parties, and the same were prepared and executed by all of the parties and delivered with a letter of instructions dated August 7,1934, signed by all the heirs, to the Springfield Marine Bank, as trustee, whereunder all such papers, documents and evidences of title or division of said property were delivered to the bank and divided among and delivered to said parties according to their respective rights and interests as so agreed upon. After the same was transferred to her, Louise B. Hiekox conveyed certain real estate to Norman B. Hiekox and Harris V. Hiekox, reserving a vendor’s lien to insure payment of $200 per month to her so payable on the first day of each month during her lifetime and for the payment of said sum per month after her death to her executor or administrator for a period of not more than 18 months in so far as such payments might be necessary to satisfy claims against her estate and to pay a legacy of $1,000 to her sister and the costs of administration. In the trust agreement it was further stipulated that out of the income from the trust property, the trustee, Springfield Marine Bank, should pay the sum of $2,400 a year to Louise B. Hickox during her lifetime and that the trustee should make such payments to her executor or administrator for a period of not more than 18 months after her death in so far as such payments might be necessary to satisfy claims against her estate together with a legacy of $1,000 to her sister and the costs of administration.

' In the letter of instructions to the bank, it was also provided that the homestead property involved in this suit should be conveyed to Louise B. Hickox by her children, and the deed thereto was delivered to the bank with the letter of instructions.

Claims totaling $5,697.30 were filed in Louise B. Hickox’s estate, which estate consisted of money in the bank amounting to $535.36 and miscellaneous household articles and personal property.

The original complaint sought judgment against each of the defendants in the sum of $1,800 alleged to have been necessary to meet the claims filed against said estate, predicating said alleged cause of action on the contract providing for contributions for the support of the mother as hereinabove set forth and for a period of 18 months beyond the time of her death.

The counterclaim sought equitable relief by alleging that in violation of the provisions of the written agreement entered into on January 10, 1931, and the subsequent negotiations, agreements and understandings between said parties, the appellant unlawfully, wrongfully and secretly on or about May 24, 1934, obtained from Louise B. Hickox an agreement to convey the homestead property to her, together with a warranty deed thereto, and that she agreed that on the completion of such transfer she would return to said Louise B. Hickox the shares in said building corporation issued to the latter when so required in order to complete a division of the property among said heirs, which shares she claimed had been previously transferred by indorsement to her by Louise B. Hickox, although no such indorsement appeared thereon, contrary, to the expressed restrictions indorsed on the certificates for such shares as set forth in paragraph five of the written agreement dated January 10,1931. The above deed was not recorded, but was secretly held by the appellant and never made known to the appellees until after the death and probate of will of Louise B. Hickox, when it was recorded on October 9, 1934.

The counterclaim further alleged that contrary to the restrictions contained in said agreement and further conditions, negotiations and agreements made for the division of said real estate and shares of stock by all the children, the appellant on or about August 27, 1934, obtained a second warranty deed of said homestead property to herself without any valid consideration therefor, which deed was also secretly held by her and never made known to the appellees until after the death of Louise B. Hickox, and until after the probate of her said last will and testament.

Further allegations of facts and circumstances connected with said alleged fraud were set forth in the counterclaim and much of the voluminous evidence appearing in the abstract and record and the approved finding’s of the master cannot be recited herein, but the same have been carefully examined and considered by the court.

It appears from the evidence and from the approved report of the master herein that the transactions between Louise B. Hickox and the appellant with respect to the alleged agreement and warranty deed dated May 24, 1934, undertaking to convey the homestead premises were made secretly and without the knowledge of the three remaining children and cotenants therein and in violation of the terms of the written contract of said parties dated January 10, 1931, then remaining in full force and effect; that the subsequent warranty deed from said Louise B. Hiekox to the appellant dated August 27,1934, conveying said premises to the appellant was likewise so secretly made without the knowledge, consent or approval of the appellees in violation of the terms of said contract, which said secret conveyances and arrangements were wholly unknown to the remaining* children until said deeds were recorded in October, 1934, and prior to both the date of the execution and delivery of the escrow arrangement and of the deed from the children to the mother, which latter deed and contract were delivered td the parties on September 6,1934, and immediately prior to the death of the mother on September 8th.

It further so appears that during the negotiations for the division of said property between the said parties as cotenants, owing toward each other the exercise of good faith in their respective transactions as tenants in common, and as a part of the consideration therefor, the defendants so altered the terms of such tentative arrangements as to provide for the transfer of said homestead to the mother for the stated reason that the same might become necessary for her use and support during* her lifetime and in the payment of claims against her estate, which statement and purpose, together with the statement that the same was not to be disposed of during her lifetime, was made by Harris V. Hiekox in the presence of all of said parties and tacitly agreed upon, and was a part of the moving consideration which resulted in the agreement of the other children that they would contribute the monthly payments after her death.

To permit the appellant by such concealment to procure an undue advantage over the other children by procuring title to this property and leading them to enter into an agreement on the part of the four children to make such contributions after the mother’s death toward the claims of her estate, knowing that such property was passing indirectly to her and not to her mother or mother’s benefit nor as a part of her prospective estate would be unjust and inequitable and would permit her to take advantage of her own wrongs.

The equitable relief sought by the counter claimants was against the fraud and deceit exercised by the complainant herein, whereby she now seeks to retain the property free from the payment of all obligations and force them to contribute to the payment of an indebtedness under the terms of the agreement so procured by her by such fraudulent concealment, which claims against the estate consisted principally of the $1,000 gift to the sister, provided for in the contract, together with attorney fees for services performed.

While such an agreement between the children as tenants in common, when fairly and understandingly entered into, would be binding, the remaining children had a right to know and it was the duty of the appellant to speak out when the agreement to meet the mother’s obligations was made and when she knew that she already held the contract for the deed from the mother and her warranty deed to the property, which would force them by such deception and concealment to meet the very obligation which she now seeks to enforce to her own advantage.

We do not question the legal right of the mother to make the transfer of property to which the fee simple title became vested in her, but the contract for the payment of the sums as between the four children was tainted with fraud and therefore that portion of the contract by which she seeks to recover this money from the other children was properly held by the trial court to be fraudulent as between the appellant and counter claimants herein.

We hold that the finding of facts and conclusions of the master, as approved by the court and embodied in its decree, were in accordance with the evidence; that the defendants amply sustained the material allegations of their counterclaim and were entitled to the equitable relief therein granted against the appellant.

It is further insisted by the appellant that much of the evidence offered to sustain the counterclaim herein was given by incompetent witnesses in contravention of the provisions of sec. 2, ch. 51, Ill. Rev. Stat. 1939, [Jones Ill. Stats. Ann. 107.068] rendering interested persons incompetent to testify in a civil action when the adverse party sues or defends as executor, administrator, heir, legatee or devisee of any other person. We are of the opinion that the defendants were competent witnesses in support of the allegations made in their counterclaim as against appellant Louise Hickox Pickering as an individual, who was so made a party defendant to their counterclaim and was a party to all of the transactions in controversy. Simpson v. Wrate, 337 Ill. 520, 169 N. E. 324.

In the latter case, the heirs of the deceased grantor sought to set aside her deed to another heir or to have a trust imposed thereon because of a verbal agreement of all the parties to be reimbursed out of the property conveyed for services rendered the grantor, wherein it was held that they were competent witnesses as to the terms of said agreement with the grantor, as the defendant in such case was not being sued as an heir but as a grantee of the grantor. To the same effect is Seaton v. Lee, 221 Ill. 282, 77 N. E. 446, and cases therein cited.

It is said in the opinion of the trial court appearing in the record herein that their testimony was considered as competent in support of the counterclaim and was so limited, and that since the witnesses were competent for certain purposes, the general objection to their competency was overruled. The effect of the decree would be to augment and not to lessen the assets of the estate chargeable with the claims against the same.

After careful consideration of the evidence and circumstances surrounding the transactions of the parties at issue herein, we are of the opinion that the chancellor properly entered a decree in accordance with the findings and conclusions of the master and in granting the relief prayed for under the counterclaim and the same will therefore be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Fulton

license: Public Domain

text:
    Good Hope State Bank, Appellee, v. Alice Beryl Kline and Pete Kline, Administrators of the Estate of Clarence P. Kline, Deceased, Appellants.
    Gen. No. 9,193.

      Heard in this court at the April term, 1939.
    Opinion filed January 15, 1940.
    Rehearing denied February 23, 1940.
    Flack & Kerman and Roswell B. O’Harra, all of Macomb, for appellants.
    Gumbart & Grigsby, of Macomb, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

On March 27, 1936, appellee, Good Hope State Bank, a corporation, filed a claim in the county court of Mc-Donough county, against the Estate of Clarence P. Kline, deceased. By agreement the venue was changed to the circuit court of said county, and the case tried before the court, a jury having been waived.

The claim was in words and figures as follows:

“Estate of Clarence P. Kline
to Good Hope State Bank, Dr.
“Amount due from Archie J. Applegate on note for $5,596.80 evidenced by judgment in Circuit Court of McDonough County, Illinois, March 20, 1930, under guarantee of December 1, 1933, copy of which is attached ..................................$9,112.12.
“Attached to the claim is an instrument which reads as follows:
“December 1st, 1933.
Guarantee.
“For value received the undersigned, C. P. Kline, hereby guarantees to the Good Hope State Bank, Good Hope, Illinois, the payment of a certain principal sum of $5,596.80 and all accruing interest thereon from the date of this guarantee, due to the Good Hope State Bank from Archie J. Applegate of Macomb, Illinois; this shall be a continuing guaranty to The Good Hope State Bank until full settlement of said obligation is received by said bank.
“C. P. Emms (Seal) ”

On the trial appellee, by leave of court, amended the claim on its face by striking out the word “March” and inserting in lieu thereof the word “May.”

The leading facts show that on November 24, 1928, Archie J. Applegate executed a promissory note of that date payable to the appellee on demand for the principal sum of $5,725.13, with interest at 7 per cent and containing a warrant of attorney to confess judgment. On the back of this note appear two indorsements, as follows :

“Dec. 27, 1929, Pd. on Interest, $50.00.
“May 3, 1930, Pd. $128.33.”

On May 20, 1930, a judgment was entered by confession in favor of appellee against Archie J. Applegate upon said note, for the sum of $6,999.31 and costs. Two executions were issued upon said judgment, but the returns failed to show any payments made thereon.

On or about December 1, 1933, A. J. Adams, a State bank examiner, visited the bank and told the directors that the above judgment was being carried as an asset of the bank and that it would have to be removed and the asset made good. He testified that he further told the directors, one of whom was the decedent, Clarence P. Kline, that after his examination was made he would not allow the bank to reopen until the assets he had mentioned were made good. That on Thanksgiving day the directors came to his house and agreed to make good the said assets; that Mr. Kline said that he would guarantee the Archie Applegate indebtedness to the bank. That on December 1st he met Kline and Allison, president of the bank and prepared the guaranty which was later attached to the note as shown by claim of appellee; that Kline signed the guaranty and delivered it to Adams and that Adams left the original with the bank and attached a copy thereof to his. report. At the same time the president of the appellee bank, Alvah Allison, put in the bank about $18,000 in cash to take care of some other objectionable notes. Allison received deferred certificates for the $18,000 put up by him, payable out of the assets of the bank before anything was payable to the stockholders, but no deferred certificates were issued to Kline for the guaranty. Kline died April 17, 1935.

Numerous grounds were urged by appellants as to why the judgment of the circuit court should be reversed, but as we view the case only one or two of them will need to be considered in this opinion.

Appellants contend that the sole consideration for the signing of the guaranty by Kline was to prevent the prosecution of his son-in-law, Archie Applegate, for the making of an alleged false financial statement in connection with the loan of the money represented by the Applegate note. The evidence on this point was as follows : Susie Hatch, a daughter of Kline, testified that the next day after her father’s death, she and her brother Pete had a conversation with Mr. Allison, the president of appellee bank, and that he told them their father was too good to his children and that one thing he did was to keep Archie Applegate out of jail. That he also said their father had to save Archie from going to jail. She further testified that on March 17, 1938, she and her brother Pete went to the bank and she asked Allison what made her father sign the guaranty and that Allison replied, “To keep Archie Applegate out of a jam would be all I know. ’ ’ Pete Kline not only corroborated his sister as to the last conversation with Allison when he told them their father signed the guaranty to keep Archie out of a jam. but also stated that in the summer after his father’s death Allison told him that he didn’t intend to file this claim against the estate of Clarence P. Kline and that he didn’t think the estate owed that debt.

Allison on the stand did not deny any of said conversation. He repeatedly said he did not remember and he would not say that he did not make the statements testified to by the Kline children nor that he did make them. He testified that at the time the original note in this case was given by Archie Applegate, or at some time prior to the entry of the judgment, a financial statement was made by Archie Applegate; that he, Allison, later took that statement to the State’s Attorney and talked with him about taking action against Applegate for a false property statement and whether they could prosecute Applegate with reference thereto. He further stated that he probably talked to Kline about what he had done; that he did not know whether Kline had told him that if he would not prosecute Applegate he, Kline, would guaranty the payment of the indebtedness, but that he, Allison, would not say that Kline did not so state. Allison was asked about many other and similar conversations with other parties and he repeatedly said he would not say that he did not make such statements or that he did. Most of these talks were with the father of Applegate, the attorneys for appellants and with Kline and related to plans for turning over the statement to the State’s Attorney, indicting Archie and prosecuting same. Also conversations with Kline about suspending prosecution if he, Kline, would guarantee the indebtedness. After December 1, 1933, the date of the guaranty, there was no further talk of prosecution, because as Allison testified we got the note in shape so that the department would accept it.

So many times did Allison testify that he would not say he did not make certain material statements relating to this subject or that he did, that one must become convinced that it really amounted to affirmative testimony on his part of the truth of such conversations.

While the appellee has wholly failed to comply with Rule 9, par. 2 of this court, providing- that the appel-lees’ brief must contain “a statement of the propositions by which appellee seeks to meet the alleged errors and to sustain the judgment or decree, or by which such errors are obviated,” we find that it does contend that adequate consideration was given Kline for the execution of the guaranty in that the agreement between Kline and Allison whereby Kline would sign the guaranty and Allison would put $18,000 in cash in the bank, and take out objectionable paper of that amount, prevented the closing of the bank; that this arrangement was an advantage to Kline, a stockholder and director of the bank, in having the bank remain open and a going concern. Also that it might avoid a possible stockholder’s liability.

The Applegate note was dated November 24, 1928. The judgment thereon was.taken May 20, 1930. More than three years thereafter on December 1, 1933, the guaranty was executed. We have examined the record carefully and are impelled to believe that the real consideration for the execution of the guaranty was to stifle and prevent the prosecution of Archie Applegate because of an alleged false statement made by Apple-gate in procuring credit from the bank. Clarence Kline, who executed the guaranty in question, and Allison, the president of the bank, are the two persons who knew the details of the transaction surrounding the execution of the guaranty. Because of his death Kline could not testify, but the evasive and uncertain testimony of Allison, who appeared to have personal charge of the claim, together with the evidence of the Kline children, and the circumstances surrounding the entire transaction, lead us to the conclusion announced above.

Such an agreement was an attempt to suppress prosecution of a criminal offense and therefore illegal, void and against public policy. Under such circumstances it did not constitute a valid consideration for the guaranty upon which the claim was based. As a general rule, if any part of an entire consideration for a promise be illegal, the whole contract is void. Henderson v. Palmer, 71 Ill. 579. A deed made by a husband to his wife to escape prosecution for a felony charge which the wife was threatening to bring against him is without consideration, as such a contract is illegal and against public policy. Woodall v. Peden, 274 Ill. 301. Where there is included in the compromise of civil injuries from a criminal act, some promise or agreement, express or implied, that the prosecution of the criminal case shall be suspended, the agreement is contrary to public policy and illegal. Henderson v. Victor, 268 Ill. App. 514.

Since the question we have discussed is the controlling one in our opinion, the judgment of the lower court is reversed and the cause is remanded to the circuit court of McDonough county with directions to enter a judgment for the appellants in accordance with this opinion.

Reversed and remanded with directions.


text:
    People of the State of Illinois ex rel. John W. Barber, Appellants, v. W. E. Hargreaves et al., Appellees.
    Gen. No. 9,194.

      Heard in this court at the April term, 1939.
    Opinion filed January 15, 1940.
    Rehearing denied February 23, 1940.

      William P. Roberts, State’s Attorney, and Gillespie, Burke & Gillespie, all of Springfield, for appellants.
    Lord, Bissell & Kadyk, of Chicago, and Graham & Graham, of Springfield, for appellees.
   Mr. Justice Fulton

delivered the opinion of the court.

On the 28th day of February, 1938, the People of the State of Illinois on the relation of John W. Barber, by the State’s Attorney of Sangamon county, the appellants in this court, filed their complaint in quo warranto against the appellees, who are about 1,900 individuals, charging that for the space of 40 days and more last past, they had as such individuals, been and then were exercising without authority the claimed right to transact insurance business in the State of Illinois as an alien Lloyds.

The appellees, after preliminary motions were disposed of by the court, filed their answer setting' up 13 defenses. The first defense denied that appellees were exercising such right without authority and set up in substance that pursuant to a decision by the director of the department of insurance of the State of Illinois that they had complied with the requirements of the Illinois Insurance Code, and had procured a certificate of authority from the said director, which was issued to them on the 28th day of December, 1937, to be in effect until June 30,1938.

Appellees’ second defense alleged in substance that prior to July 1, 1937, appellees were authorized to transact, and were transacting insurance business in the State of Illinois pursuant to a certificate of authority then in effect, and that such certificate of authority was renewed by the director in accordance with the provisions of the Illinois Insurance Code, after the director had determined that they had complied with the requirements of the code. A motion to strike appel-lees ’ third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth and thirteenth defenses was sustained. The motion of appellants to strike defenses first and second above set forth was denied. A motion by the appellees to carry back the appellants’ motion to strike the answer and to dismiss the complaint was also denied.

Appellees then filed, an amended answer containing their fourteenth, fifteenth and sixteenth defenses alleging in substance that for more than five years prior to July 1, 1937, appellees were transacting an insurance business in Illinois, and each year prior to and including 1936, appellees complied with the laws of Illinois and procured from the director of insurance a certificate of authority to transact insurance in Illinois, and that said certificate was renewed annually; that the certificate of authority obtained July 1,1936, was for a period of one year ending June 30,1937, and upon its termination, section 114 of the code required the director to renew said certificate for one year without application by appellees, upon the payment of the annual privilege tax imposed by the code, which was duly paid by appellees,-and upon such payment the director renewed said certificate of authority for a period of one year ending June 30,1938; and by reason of sections 187 and 201 of the code, no order, judgment or decree enjoining, restraining or interfering with the prosecution of the business of appellees may be made or granted other than upon the petition of the director represented by the Attorney General, in the manner provided in section 188 of the code and made applicable to appellees by section 197, and said certificate of authority could only be cancelled by the director in the manner provided by section 119 of the code.

The appellants filed a reply to the first and second defenses setting forth that while the appellees had obtained a certificate of authority on December 28, 1937, it was issued improperly and without warrant of law because of a failure to comply with the requirements and conditions prescribed by the Illinois Insurance Code precedent to the issuance of a certificate of authority to transact business in the State of Illinois as an alien Lloyds.

Appellants also moved to strike the fourteenth, fifteenth and sixteenth defenses on similar grounds, alleging that the said answer or defenses do not state facts constituting a legal defense; that the matters set forth are immaterial and irrelevant and fail to set out facts which show lawful authority in the appellees to exercise the right to transact an insurance business in the State of Illinois as an alien Lloyds, and that it fails to disclose facts showing compliance by appellees with the requirements and conditions prescribed by the Illinois Insurance Code preceding the issuance of a certificate of authority. The appellees moved to strike appellants’ reply to the first and second defenses.

The trial court sustained appellees ’ motion to strike appellants’ reply to the first and second defenses, and overruled appellants’ motion to strike appellees’ fourteenth, fifteenth and sixteenth defenses, and carried back to the complaint appellants ’ motion to strike the original complaint and dismissed the complaint for lack of capacity of appellants to maintain the action. The court then rendered judgment that appellants take nothing by their suit and that appellees recover their costs from the relator.

From these orders and the judgment of the court the appellants have perfected this appeal. They pray that the said judgment be reversed and the cause remanded to the circuit court of Sangamon county, with directions to vacate and set aside the foregoing orders.

On June 28, 1938, the court granted Ernest Palmer, director of insurance of the State of Illinois, by John B. Harris,- an Assistant Attorney General, to appear as amicus curiae, who presented an argument and resisted the petition filed in this cause, and asked for its dismissal.

The major portion of the controversy in this case arises over the construction of section 201 of the Insurance Code and the consideration of whether or not it is applicable and controlling in this proceeding. Section 201 reads as follows:

" Sec. 201. Who May Apply for Appointment of ¡Receiver or Liquidator.) No order, judgment or decree enjoining, restraining or interfering with the prosecution of the business of any company, or for the appointment of a temporary or permanent receiver, rehabilitator or liquidator of a domestic company, or receiver or conservator of a foreign or alien company, shall be made or granted otherwise than upon the petition of the Director represented by the Attorney General as provided in this article, except in an action by a judgment creditor or in proceedings supplementary to execution after notice that a final judgment has been entered and that the judgment creditor intends to file a complaint praying for any of the relief in this section mentioned, has been served upon the Director at least thirty days prior to the filing of such petition.”

It is the contention of appellants that said section of the Insurance Code relates wholly to “rehabilitation, liquidation, conservation and dissolution of companies” and to the appointment of a receiver or liquidator, as the title to the article under which it appears and the heading of section 201 itself implies. Article XIII of the Insurance Code, under which section 201 appears, is entitled “Rehabilitation, Liquidation, Conservation and Dissolution of Companies. ’ ’ That therefore, the section could not in any manner be construed to control or affect the present proceeding.

The statute providing' for the Insurance Code, adopted in 1937, is complete in itself and the sections should be construed and treated as a part of the entire act. Under section 2(e) the word “Company” is defined to mean an insurance company and deemed to include individuals engaged in any kind of insurance business. In section 187 defining the scope of Article XIII it is asserted that the article shall apply to every company which is doing an insurance business in the State of Illinois. Section 201 expressly states that no order, judgment or decree enjoining, restraining or interfering with the prosecution of the business of any company, shall be made or granted otherwise than upon the petition of the director represented by the Attorney General. Through other sections of the article reference is made to ‘ ‘ Every Company. ’ ’ Statutes are to be construed so as to give each word and sentence its ordinary and accepted meaning. Ruda v. Industrial Board of Illinois, 283 Ill. 550. In People v. Nash, 364 Ill. 224, it was held that certain sections of the Revenue Act should be construed together in order to gather the legislative intent. In that case the court said, “Sections are purely artificial divisions of the Statute,” and in quoting with approval language from the case of Warner v. King, 267 Ill. 82, “A statute is passed as a whole and not in parts or sections, hence each part or section should be construed in connection with every other part or section. It is not proper to confine the attention to the one section to be construed.”

It is our judgment that section 201 is part of the Insurance Code and that the scope of Article XTTT is broad enough to include the present proceeding.

It is insisted by appellants that the Insurance Code does not intend to invest the director with arbitrary, unlimited and unrestrained power, nor to deprive the People of the State of Illinois of their right to inquire whether any license issued or granted by him has been so granted or issued improperly or without warrant of law. They urge that the General Assembly has prescribed standards for the issuance of a certificate of authority for insurance companies to transact business in the State; that the power of the department to act at all is limited by these standards; that the statute should be strictly construed, and the question whether the action of the department was without warrant of law is a judicial question. The provision of the statute providing for a review of the action of the director of insurance by the circuit court was not asked for by appellants. They rely entirely on the question of whether or not the director acted wholly without authority.

The State of Illinois, along with many other States in the Union, have assumed a strong* position with respect to the regulation, control and supervision of the business of insurance, and hold that such business affects the public interest and is therefore a subject of legislation. In pursuance to the adoption of this definite public policy, the Insurance Code was passed by the General Assembly.

Similar provisions to section 201 have been construed by courts of other jurisdictions, which appellants say are not applicable here because those cases involved suits between fraternal insurance companies and their members and that our Supreme Court has carefully distinguished between remedies belonging to the individual in his individual capacity and remedies belonging to the people as a part of their sovereignty. However, the language of the court in those cases announced principles of law which have weight in this case. In the case of Lowery v. State Life Ins. Co., 153 Ind. 100, 54 N. E. Rep. 442, the court said:

“Here we have very explicit language that a court shall have no power to enjoin or interfere with the business of an insurance company except upon the condition stated, namely, the application of the Attorney-General. That the Assembly had the power to fix terms to such suits cannot be doubted, and that it has provided that no one but the Attorney-General, either upon his own motion or upon the approved request of the Auditor of State, shall be plaintiff in such suit, is beyond controversy. This being true, we have before us a plaintiff who has no right to file a complaint,— who has no right or power to put in action the jurisdiction of the court,— and, in the absence of such right or power, we have, in contemplation of law, a case without a plaintiff or a complaint. This situation defines itself. The right of jurisdiction in a court over a subject-matter may exist, but its valid exercise depends wholly upon its being invoked by one who is entitled under the law to set it in motion. ”

Other cases construing similar language to the same effect are Swan v. Mutual Reserve Fund Life Ass’n, 155 N. Y. 9, 49 N. E. Rep. 258; McGarry v. Lents, 13 F. (2d) 51. It seems to us that a statute which will prohibit a policyholder from bringing suit, which is his inherent right to do, is just as objectionable as a law which prohibits a State’s Attorney from bringing a suit at quo warranto to test the validity of a certificate of authority to transact business issued by the director of insurance.

It is charged by the appellants that to give the authority claimed for the director in this case would be to delegate legislative powers to him which are in direct conflict with the constitutional command that the legislature may not delegate its legislative function to any person or body. Chicagoland Agencies, Inc. v. Palmer, 364 Ill. 13; R. G. Lydy, Inc. v. City of Chicago, 356 Ill. 230. In those cases it was said that a clear distinction exists between the power to legislate and the power to administer or regulate its exercise, once granted.

The authority of the director and the limitations upon the power of the courts to review his actions is discussed in the case of People v. Niehaus, 356 Ill. 104. The court there said at p. 109:

“In the case of In re Casualty Co. of America, 244 N. Y. 442, 155 N. E. 735, the Court of Appeals, speaking through Chief Justice Cardozo, clearly depicts the cause of the enactment of the Illinois Insurance Liquidating act of 1925. He said: ‘The system of liquidation by receivers specially appointed had proved to be dilatory and wasteful. The legislature substituted administration by a department of the government. ’ Our Insurance Liquidation act is patterned closely after that of New York. Prior to 1925 the method of liquidating and dissolving an insolvent insurance company was set out in sections 5 and 6 of an act with reference to the dissolution of insurance companies, approved February 17, 1874. This method required the appointment of a receiver by a court of equity upon the application of' the insurance superintendent, stockholder or a creditor. The receiver had full power to collect and distribute the assets, and his compensation was determined by the court. He was in every sense an officer of the court.
“A radical change was effected in the law with reference to the liquidation of insolvent insurance companies by the 1925 act. By it the administration of the affairs of an insolvent insurance company became vested in an executive officer of the State rather than in a receiver appointed by a court. The duties which formerly devolved upon a receiver in collecting and disbursing the assets of a defunct company were imposed upon an official of the executive department of the government, subject, however, to a limited supervision by a court of equity.”

Again the court said, beginning on p. Ill: “The statute here involved makes the receiver an executive or administrative officer and not a judicial officer. ’ ’

This case therefore holds that the power to appoint a receiver for an insolvent insurance company was vested in the director and not in the court, and that the court could not take over that power. A similar situation arose under the Banking Act, which in terms covering the appointment of a receiver resembles the Insurance Code. In the case of the People v. Shurtleff, 353 Ill. 248, it was held that the court had no power to remove a receiver of a closed bank who had been appointed by the auditor of public accounts, and appoint a receiver of his own selection even though the auditor had instituted proceedings in that court in connection with the liquidation of the bank, and his order attempting to do so would be expunged.

It appears to us that the power given to the director under the insurance code is regulatory and not legislative. He is vested with authority to determine whether or not a company is complying with the statute and whether any grounds exist for revoking a certificate of authority. Being an executive officer his acts, within the scope of his authority, are not and should not be subject to review by the courts. Any other rule might result in the courts substituting their judgment for that of the director.

The legislature of this State has recognized the development of the business of insurance in this State and has determined the necessity of placing the control of such business in the hands of an executive officer in order to protect the public interest. It was the intention of the General Assembly that having provided a department to handle the insurance business, it should not be disturbed by actions against such department except through the action of the officer in charge of that department.

The petition of the appellants filed in this court alleges that the appellees and each of them for a space of 40 days and more prior to the filing of the petition had been and then were exercising without lawful authority a claimed right to transact insurance business as an alien Lloyds in the State of Illinois. The law compels them before exercising such right to secure a certificate of authority from the director of insurance, which they have done. The director of insurance is empowered by law to issue such certificate of authority and the fact that he has done so seems complete justification for the position of appellees.

It is our opinion that the trial court correctly ruled that the complaint in this cause be dismissed for lack of capacity of the appellants to maintain this action, and the judgment and orders of that court are hereby affirmed.

Affirmed.


author: Mr. Justice Hates

text:
    Cora Grein, Appellant, v. George Grein, Appellee.
    Gen. No. 9,204.

      Heard in this court at the October term, 1939.
    Opinion filed January 15, 1940.
    Rehearing denied February 23, 1940.
    Clark, Noel & Dietz, of Urbana, for appellant.
    James H. Pricer, of Mansfield, for appellee.
   Mr. Justice Hates

delivered the opinion of the court.

This is an appeal from the circuit court of Cham-paign county, from an order and decree dismissing the complaint of Cora Grein, appellant, hereinafter called plaintiff, against George Grein, appellee, hereinafter called defendant, for want of equity.

This complaint seeks to have declared void a decree of divorce secured by the defendant in the district court of the second district of the State of Nevada.

It appears from the record that the parties were . married on the 30th day of June, A. D., 1930, and lived together until the 8th day of April, 1931. On the 10th day of April, 1931, Mrs. Grein filed a suit for separate maintenance in the circuit court of Champaign county, and on the 15th day of October, 1931, George Grein, the defendant, filed a cross-bill for divorce, alleging desertion. On the 30th day of December, 1932, after a trial in this cause, the court dismissed both the original complaint and the cross-complaint for want of equity. On February 24, 1934, the defendant again filed a suit for divorce in the same court, alleging desertion. Cora Grein filed an answer. The matter was heard by the court on the 5th day of November, 1934, and a decree was entered finding Cora Grein not guilty of desertion. The complaint was dismissed for want of equity. George Grein appealed to this court, and on July 17, 1935, this court affirmed the decree of the circuit court in said cause. The following March, George Grein went to see a lawyer at Urbana, Illinois, to see if he could get a divorce in Illinois. At the same time he inquired about the divorce laws of the State of Nevada.

Under the statute of the State of Nevada, where husband and wife have lived apart for five consecutive years, without cohabitation, the court may at its discretion grant an absolute decree of divorce. The period of five years’ separation expired April 8, 1936. The defendant testified that he arrived in Reno, on July 14, 1936. Under the laws of this same State, a complainant is required to reside in the State of Nevada for six weeks prior to filing a suit for divorce. On August 31, 1936, George Grein filed his complaint in the district court of the State of Nevada, in the county of Washoe, charging Cora Grein with extreme cruelty. He also alleged that the parties to said suit had lived separate and apart for more than five consecutive years without cohabitation, which complaint was sworn to by George Grein. Neither in his complaint, his evidence nor proceedings of the Nevada case, did George Grein advise the Nevada court of his two prior divorce suits in Illinois in which he had been denied a divorce. Constructive service was obtained on Mrs. Grein. She did not appear or defend the Nevada case, nor did the Nevada court obtain personal jurisdiction over her.

It appears from the transcript of George Grein’s testimony in the Nevada case, that all the evidence bearing on the question of extreme cruelty had occurred prior to his second divorce action in Illinois, and is as follows:

“Mrs. Grein treated me with extreme cruelty, always nagging at me and kicked me out of bed the second night I was married to her. Every time she passed me in the dining room she knocked me with her fist and she would be gone every day of the week. She would pack a big lunch and she would not come home until seven o’clock and sometimes eleven at night. She twisted my arm around a chair, and I told her that was a nice way to treat an old man. She was trying to do away with me, and I found the gas turned on three different times. She threw something in my eyes on one occasion, and I had to go to a doctor to relieve the condition of my eyes. She nagged and found fault with me shortly after the marriage and continued up to the time of the separation. She left me on April 8, 1931, and I have never since lived with her. I have been under a nervous strain since I married her. I did not give her any cause for treating me that way.” It appears that all this, if true, existed at the time of Grein’s last divorce in Champaign county, Illinois. Although the Illinois case was based on desertion rather than cruelty, the law is,
“Where several causes of divorce exist to the knowledge of complainant and a divorce is sought upon one ground only, a decree on the merits denying the petition is generally held a bar to a subsequent petition based on another of such existing causes. . . . Unless a cause known is pleaded in the original action or good cause for the omission is shown, the plaintiff must be deemed to have waived any right to a divorce depending exclusively upon facts existing and known to him at the time of the first application to the court and not relied on at that time. ’ ’ 17 Am. Jur., section 177, page 240.

In the. present suit, the defendant testified that he went to Reno, Nevada, for the sole purpose of his health. It appears from the record, however, that two days after the expiration of the six weeks, he filed suit for divorce. He received his divorce on the 5th day of October, 1936, and on the 7th day of October, 1936, he left Reno for Miami, Florida, where he stayed until the 19th day of February, 1937. Leaving Florida he returned to Reno, and stayed two months in a hotel, at the end of which time he went to Champaign, Illinois, and remained during, the summer of 1937. This suit was filed the 23rd day of August, 1937. The evidence shows that George Grein moved into a house located at 305 East Daniel street, Champaign, Illinois, in the year of 1919, and that he still owns this property and has lived there ever since, except for the short period of time spent in Miami and Reno, at which time the house remained unoccupied until his return when he again lived in the same house.

After defendant obtained his divorce, he had every reason to anticipate the same might be contested in the courts of Illinois, so he did not come to Illinois, but went to Florida and remained several months, then went back to Reno, and stayed for two months. Shortly after his return to Illinois the following summer, this suit was filed by his wife. During the two months that he was in Reno, and subsequent to obtaining his decree of divorce, it appears that he filed an income tax return, opened a small bank account and wrote three checks against it. He claims to have voted while in Nevada as well as registered his automobile, all of which can be reconciled for the purpose of obtaining a divorce and nullifying the effect of the adjudication in the Illinois courts, and in keeping with the creation of self-serving evidence contemplating litigation in Illinois. In this connection this court stated in the case of Jardine v. Jardine, 291 Ill. App. 152, citing with approval Janssen v. Janssen, 269 Ill. App. 233:

" The first question presented is whether the defendant when he went to Reno, Nevada, and lived there for the statutory period of sis weeks, did so solely for the purpose of obtaining a divorce or whether it was his intention as an actual, bona fide resident of the. State of Nevada to remain there permanently, or, at least, for an indefinite period. His intention is to be gleaned not so much from what he now states such intention to have been, but from the facts and- circumstances as they occurred.”

It is a well-established proposition that where one spouse goes to a State other than that of the matrimonial domicile and there obtains a divorce under a residence simulated for that purpose and not in good faith, the judgment is not binding upon courts of other States. It is within the power of the State to forbid the enforcement of such a decree. The rule is especially true where the cause of divorce is one not recognized by the laws of the State of his domicile, and the full faith and credit clause of the Federal Constitution is not violated by the refusal of a State court to give effect to a foreign decree of divorce obtained by one who had temporarily left the State for the purpose of obtaining the divorce for a cause which had occurred in the State while the parties resided there and which was not there a ground for divorce. There is no rule of law, however, which prevents one from changing his domicile in order to facilitate his obtaining a divoree or to secure other advantages he may think that the laws of the new domicile may afford him; he is free to change at his pleasure, provided the change is a bona fide one, and a divorce so acquired will be recognized in the State of his former domicile.- 19 Corpus Juris 370, sec. 836.

Our Supreme Court, in the case of Dunham v. Dunham, 162 Ill. 589, 611, said:

“The considerations which have been mentioned make it clear that it is the duty of the applicant in an ex parte proceeding for divorce, on pain of obtaining an invalid decree, to avoid practicing any deception on the court in any matter affecting its jurisdiction or its discretion to proceed or not to the final determination of the cause.”

In the case of Janssen v. Janssen, 269 Ill. App. 233, the facts are practically the same as in the case at bar. In that opinion it was pointed out that neither at the hearing nor at any other time did the appellant disclose to the Reno court the previous adjudications of the Illinois court denying him a divorce, and it was in ignorance of these adjudications by the court of the marital domicile, that the Reno court was induced to grant the purported divorce. In that opinion the court said:

“It is only when the party to a divorce in a sister State has brought his or her suit upon constructive service, and established a bona fide residence in the sister State and the suit and action is free from any fraud, that the courts of this State will give full faith and credit to the decrees of other states; otherwise, such decrees are void.”

This court stated in Janssen v. Janssen, supra:

“It was held in Haddock v. Haddock, 201 U. S. 562, 50 L. Ed. 867: ‘The mere domicile within the State of one party to the marriage does not give the courts of that state jurisdiction to render a decree of divorce enforceable in all the other States by virtue of the full faith and credit clause of the Federal Constitution against a nonresident who did not appear and was only constructively served with notice of the pendency of the action.’ ”

In the case of Jar dine v. Jar dine, supra, this court cites with approval Frey v. Frey, 59 F. (2d) 1046, and quotes therefrom as follows:

“ ‘Undoubtedly it is true that a divorce granted in any state according to its laws by a court having jurisdiction of the cause and of both the parties is valid and effectual everywhere, but a divorce obtained by a person legally domiciled in one state who leaves that state and goes into another solely for the purpose of obtaining a divorce and with no purpose of residing there permanently, is invalid and the state of bona fide residence may forbid the enforcement within its borders of a decree of divorce so procured. Andrews v. Andrews, 188 U. S. 14, 23 S. Ct. 237, 47 L. Ed. 366. And this is true even though the decree of divorce recites facts sufficient to give the court jurisdiction. Sewall v. Sewall, 122 Mass. 156, 23 Am. Rep. 299. The underlying reason for this is perhaps nowhere better expressed than by Mr. Justice Field in Maynard v. Hill, 125 U. S. 190, 211, 8 S. Ct. 723, 729, 31 L. Ed. 654, where he said: “Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.’ ”

The chancellor, in passing on this evidence, reached the conclusion that plaintiff had not proven that defendant did not acquire a bona fide domicile in the State of Nevada, also that she failed to prove that defendant had practiced a fraud on the court in the State of Nevada. In passing on the question of the domicile of the defendant in Nevada, he stated: “In my judgment, under this evidence, there are some suspicious circumstances.” Under the record we are compelled to reach a different conclusion than that reached by the worthy chancellor, and find that defendant was not a bona fide resident of the State of Nevada, and that he was guilty of fraud and deception in the district court of the second district of the State of Nevada, in the county of Washoe, in that he failed to advise said court of the former adjudications in Champaign county, Illinois.

For the reasons herein stated, the decree of the circuit court of Champaign county is hereby reversed, and cause remanded to said court, with direction to enter a decree in favor of the complainant for the relief prayed for in her complaint in accordance with the finding of facts herein made.

Reversed and remanded with directions.


author: Mr. Presiding Justice Dove

text:
    William Connery, Appellant, v. Morris Van Thournout, Appellee.
    Gen. No. 9,486.

      Heard in this court at the October term, 1939.
    Opinion filed January 25, 1940.
    Arthur L. Paulson, of Elgin, for appellant.
    Oscar B. McGlasson and Harry C. Kinne, both of Chicago, for appellee; Harold F. Scovel, of Chicago, of counsel.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

On and prior to September 8, 1933 George E. Price was the owner of the real estate involved in this proceeding. On that day he and Lawrence K. Pillsbnry entered into an agreement by the provisions of which Pillsbnry took title to this and other property of Price as trustee and was given power to manage the same, collect the rents and pay the net income quarterly or when requested by the donor to the donor during his lifetime. The trust agreement further provided that the trustee should not lease the property except with the consent of the donor. Under the sixth clause of this trust agreement, certain real estate near Elgin and known as the Glenora farm was to be divided by the trustee and the homestead including a 30 acre tract was to be retained by the trustee and transmitted as a part of the residuary estate of the donor. By this same clause Marvin McNeil was given the privilege to purchase the balance of said farm within one year after the - death of the donor. The ninth clause provided that after the donor’s death, the trustee should distribute all the donor’s household chattels and furnishings among the residuary beneficiaries of donor’s estate according to the trustee’s best judgment and discretion and the tenth clause of the same instrument provided that after the death of the donor, all the rest, residue and remainder of his property “shall be divided equally, share and share alike between the following named persons: Mrs. Mary Price Gaston, Cornelius Price and James M. Price, children of James S. Price and Florence C. Price, said Lawrence K. Pillsbury and said Josephine Quinn.” By supplemental agreements the donor revoked any benefit under the trust agreement as to Josephine Quinn and canceled the privilege granted Marvin McNeil of purchasing a portion of the Glenora farm.

By virtue of the provisions of this instrument Pillsbury leased the premises to John H. Ball, whose lease expired March 1, 1939. On April 18, 1938 George E. Price died leaving Cornelius C. Price, James M. Price and Mary P. Gaston his heirs and on November 15, 1938 these parties leased the Glenora farm to Morris Van Thournout. On January 30,1939 Pillsbury leased the same premises from March 1, 1939 for three years to William Connery for a rental of $70 per month. Ball vacated the premises and on February 27, 1939, Van Thournout went into possession under the lease of November 15, 1938. Thereafter on March 1, 1939 Connery instituted this proceeding under the Forcible Entry and Detainer Act before a justice of the peace to recover possession of the leased premises. Upon appeal to the circuit court a trial was had before the court without a jury, resulting in a judgment for the defendant and against the plaintiff for costs and from that judgment the plaintiff appeals.

Appellant contends that the trust instrument executed by Price conveyed the property in question to Pillsbury as trustee, granted him power to collect the rents and that he was to divide the property equally after the death of Price among those designated in the instrument; that after the death of Price and before distribution was made, Pillsbury, as trustee, had the implied power to lease the premises, that he did lease them to appellant and that appellant is therefore entitled to judgment therefor. Appellee contends that under the trust instrument Pillsbury, as trustee, had no power to lease the premises during the donor’s lifetime without his consent; that upon the donor’s death the trust terminated and the trustee had no power to lease and the legal and equitable title became immediately vested in the residuary dpnees as cotenants under the statute of uses.

Appellant argues that the estate which Pillsbury as trustee took under this agreement is commensurate with the powers conferred by the trust and the purposes to be effected by it and that he took whatever estate in the premises involved herein as was necessary to enable him to accomplish the purposes of the trust; that the trust was an active one and required him to lease the premises, collect the rents pending a division of the property among the various beneficiaries after Price’s death; that under the trust agreement the fee to the farm was vested in him and nothing short of a reconveyance by him could place the title, after Price’s death, in the beneficiaries. In support of this argument, counsel cite Kirkland v. Cox, 94 Ill. 400; McFall v. Kirkpatrick, 236 Ill. 281 and Coryell v. Klehm, 157 Ill. 462. What these cases hold is that where the legal title is vested in a trustee under an active trust it requires a reconveyance to place the title back in the grantor, his heirs or assigns. In the Kirkland case, supra, the will creating the trust expressly directed the trustee to sell the land and divide the proceeds and the court held that under the provisions thereof the legal title would remain in the trustee until he sold and divided the proceeds as directed in the will. In the instant case no such words are'found. In all the cases relied upon by appellant the question whether a trust once active could become passive and execute itself under the statute of uses was not passed upon. Here the trust agreement did not give the trustee any power to sell, nor did it direct him to sell and divide the proceeds of such sale. By the provisions of clause 10 the residuary estate of which the premises here involved is a part are to be divided equally, share and share alike between the residuary donees. Who is to make this division does not appear, presumably, however, the trustee. If so, he should have conveyed to each beneficiary his or her undivided interest therein by deed. Under the authorities, however, this would have been a useless act. In Moll v. Gardner, 214 Ill. 248 it appeared that the premises were devised to appellant in trust to collect the rents, make repairs and keep the estate intact until Charles F. Gr. Kann arrived at the age of 25 years and then appellant was to divide the estate in four equal parts. In its opinion the court said: “By this language an active trust was created, to continue until Charles F. Gr. Kann arrived at the age of twenty-five years, when the active duties of the trustee were to terminate and the estate was to be divided. ... A trust which is active may become passive after all of the active duties have been performed, and the trust may become executed by the Statute of Uses and the title vested in the remainder-men. . . .

“Upon the arrival of Charles F. Gr. Kann at the age of twenty-five the active trust became executed and nothing remained but for the trustee to divide the estate. Physical division being impossible, the trustee might have completed her duties by conveying to each beneficiary an undivided one-fourth of the premises by deed. Bach beneficiary was of age, and they might have partitioned the estate among themselves without the intervention of a court of equity and without the costs incident thereto; or, upon the termination of the active duties of the trust, the Statute of Uses would execute the remaining provisions of the will and the title to the property would vest immediately in the beneficiaries without deed or the decree of any court. ’ ’ See also Cary v. Slead, 220 Ill. 508; Wayman v. Follansbee, 253 Ill. 602; Fox v. Fox, 250 Ill. 384 and Witham v. Brooner, 63 Ill. 344.

The fourth clause of the trust instrument involved herein is: “For and during the life of the donor, the trustee shall make investment of any funds of said trust estate only as directed by the donor, and the trustee shall not sell, lease or otherwise dispose of any trust property in his hands save and except with the consent of the donor. ’ ’ The facts are that the donor died on April 18, 1938. The lease under which appellant claims was executed by the trustee on January 30, 1939. There is no evidence that Price consented thereto. The only other provisions in the trust agreement material to the question here presented are found in the tenth clause hereinbefore referred to. Neither by this clause nor by any other provision of the trust agreement did the donor grant to the trustee any power either express or implied, to burden this farm with either a long or a short-term lease. There is no basis in the instrument to support the contention that the trustee could lease these premises after the donor’s death. He attempted to do so and leased them to appellant for three years, but in so doing exceeded the powers conferred upon him hy the instrument under which he assumed to act.

Whether, under the provisions of this trust agreement the legal title of the trustee, upon the death of the donor, merged in the equitable title of the residuary donees and they became vested with both the legal and equitable title or whether an actual conveyance from the trustee to the several residuary donees was necessary in order to invest them with the legal title, it is not necessary for us to determine. Appellee was in the actual, peaceable possession of the premises in dispute at the time this suit was instituted. In order to maintain this action, appellant must establish by a preponderance of the evidence a right of possession in himself. He cannot rely upon the lack of the right of possession in appellee, whom he seeks to dispossess. Fitzgerald v. Quinn, 165 Ill. 354. The lease under which appellant claims was executed by Pillsbury as trustee. It was not made by Pillsbury as one of the residuary donees. Appellee went into possession under the lease made by the residuary donees other than Pillsbury and it is immaterial by what right appellee claims possession of the premises until appellant establishes a superior right to possession thereof.

It was stipulated upon the hearing of this case that there was then pending in the circuit court of Cook county a proceeding in which Pillsbury was a party defendant, having for its purpose the canceling of this trust agreement and from an accounting and an injunction and that a preliminary injunction had issued restraining Pillsbury from conveying the premises here involved except upon an order of that court and there is no proof that the court authorized the execution of the lease by Pillsbury to appellant.

In our opinion the judgment appealed from is sustained by the competent evidence found in this record and will be affirmed.

Judgment affirmed.


text:
    Henry L. Wolff, Appellee, v. Carl A. Smith, Appellant.
    Gen. No. 9,492.
    Heard in this court at the October term, 1939.
    Opinion filed January 25, 1940.
    Karl C. Williams, of Rockford, for appellant; J. Phillip Dunn, of Rockford, of counsel.
    Hall & Dusher, of Rockford, for appellee.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

This suit was instituted to recover the alleged contract price of a portrait and frame therefor. A trial was had resulting in a verdict for the plaintiff for $460, upon which judgment was rendered and defendant appeals.

The evidence discloses that appellee is a professional portrait painter having a studio in New York City. Appellant is an officer of the Smith Oil and Refining Company and resides in Rockford. Appellant and his brothers were desirous of having appellee paint a portrait of their deceased father to hang in the offices of the company and in January, 1937 appellee was in Rockford and on the thirteenth of January, while in the offices of the company, dictated, signed and delivered to appellant the following letter:

“As per our conversation in your office January 12th, I beg to say that the portrait of your Father will be painted entirely on my own responsibility and request with no obligation involved.

“I am sure of the happy result of this portrait and that it will be most satisfactorily accepted as an accurate and vivid likeness of the elder Mr. Smith.

“The price will be five hundred ($500.00) dollars for the canvas to be paid if my work is found to be to the entire satisfaction of all concerned. ” Appellee painted and delivered this portrait and it was accepted and paid for by appellant and his brothers. At the time this portrait was delivered appellant stated to appellee that some time in the future he would like to have a portrait similar to the one that had just been accepted to hang in his own home. On August 2, 1937, appellee was in Rockford, had lunch with appellant at the Faust Hotel, quoted a price of $400 for a second portrait and $60 for the frame, and, according to appellant’s testimony, stated that he would paint the second portrait under the same terms as the first, that he would paint it upon his own responsibility and without any responsibility upon appellant’s part to accept it and subject to appellant’s full acceptance.

According to the testimony of appellee there was nothing said in this conversation about the terms upon which the second portrait was to be painted. Appellant, however, gave appellee a colored photograph of the first portrait and the next day appellee, while en route to his home in New York, wrote appellant from Toledo, Ohio, as follows:

“My Dear Mr. Smith:

“I feel very much indebted to you for the courtesy and favor of calling at the Hotel Faust last evening to meet me. Please be assured that I will do all in my power to make the second portrait of your dear father as outstanding and exact a likeness as the first one, and to your entire satisfaction.

“And herewith beg to reiterate my statement to you last evening, that I am very pleased to paint this second portrait on my own initiative and request, and no obligation at no time. The price to be $400 — for the canvas (portrait), and additional cost of frame to be $60. — Needless to say that a very fine appropriate frame will be selected to meet with your entire approval. Size of portrait 20 inches by 24 inches.” Appellee returned to his studio, painted the portrait and about October 20,1937, brought it to Rockford and displayed it in appellant’s living room and asked appellant for an expression of an opinion. According to appellant’s testimony he then and there told appellee that his father’s eyes were brown as shown in the first portrait and in the colored photograph but in the second portrait they were painted blue, that the clothing in the first portrait was gray instead of black, that appellee had given the figure a collapsed appearance, that the eyes were not right but were heavy and there was a cloud behind the glasses, that the whole portrait seemed to lack the vigor and vitality that the subject had and which was painted in the first portrait and that there were certain lights and shadows on the face which gave it an unnatural appearance. According to appel-lee’s testimony appellant at this time stated that the second portrait was a very good one but that there was difference in the color of the eyes and clothing. That appellee told appellant that he would be glad to make the changes as he had his paint box with him and thereupon, at appellant’s home, did make some corrections. The next day the first portrait was brought to appellant’s home from the company’s office and appellee testified that in comparing them he, appellee, found that in the second portrait the lines on the forehead were accentuated and on the face the lines were a little too hard and that these needed changing and the background needed a little deepening in tones. Appellee made these changes. According to the testimony of appellant, he, appellant, told appellee that the portrait was still unsatisfactory and that where corrections were made he felt that when a painting was once completed, it can never be satisfactorily corrected, that this criticism was not only his opinion but the opinion of art critics and that the picture as corrected was not satisfactory as it was not a good likeness of his father and that he was sorry the second portrait was not as satisfactory as the first. Appellant further testified that he told appellee that if appellee so desired the second portrait could hang in appellant’s home until after the holidays when his sister would visit him and that he would try to overcome his objections to it but that if he felt, after the holidays, as he felt then, he would return the picture to appellee. According to appellant this arrangement was satisfactory with appel-lee. Appellee testified, however, that after he had made the corrections appellant did not say. that he was still dissatisfied with it but on the contrary said it was all right and for appellee to send him a bill before he left Rockford and that appellant would remit to him within a few days. Appellee thereafter mailed appellant a statement and on November 3 and 10 wrote appellant, to which appellant replied on November 18 and appel-lee answered on November 22, 1937. From this correspondence it is apparent appellant was not satisfied with the portrait and appellee was equally insistent upon being paid.

On January 11, 1938, appellant wrote appellee that he did not find the portrait satisfactory, would not accept it and inquired what disposition he wished made of it. Appellee replied by asking for a remittance and on February 7,1938, the picture was returned to appel-lee by appellant by express. Appellee at first refused to accept it, later did so and subsequently sent it to his attorneys in Rockford, who offered to deliver it to appellant, but appellant refused to accept it. Upon the trial both portraits were offered and admitted in evidence and were certified to this court and referred to by counsel upon the oral argument of this cause.

Counsel for appellee argue that the contract which forms the basis of this suit was made with reference to the first portrait which was the standard by which the second was to be judged, that the evidence discloses that appellee did all in his power to make the second as outstanding and exact in likeness as the first, that the second portrait is substantially like the first one and appellant cannot arbitrarily reject it but he must be satisfied therewith inasmuch as the word satisfaction as employed in this contract means a reasonable and not an arbitrary satisfaction.

It is appellant’s contention that this contract is one involving a matter of fancy, taste or personal judgment and that appellee agreed that the second portrait would be satisfactory to appellant, that therefore appellant is the sole judge of his satisfaction and when he asserts he is not satisfied there can be no recovery. Instructions embodying these theories were submitted by counsel to the trial court who gave those in accordance with appellee’s theory and rejected those of appellant.

In 13 O. J. page 675 it is said: “Contracts in which one party agrees to perform to the satisfaction of the other are ordinarily divided into two classes: (1) Where fancy, taste, sensibility, or judgment are involved; and (2) where the question is merely one of operative fitness or mechanical utility. In contracts involving matters of fancy, taste, or judgment, when one party agrees to perform to the satisfaction of the other, he renders the other party the sole judge of his satisfaction without regard to the justice or reasonableness of his decision, and a court or jury cannot say that such party should have been satisfied where he asserts that he is not. ” In a note cases illustrating and supporting the text are cited and the statement is made that contracts have been held to fall within the first class and support the rule stated in the text where they have related to portraits, a portrait bust, a legal, literary or scientific article for an encyclopedia, a play to be written by an author for an actor, a set of artificial teeth, a suit of clothes, a fur coat, a carriage, a cabinet organ, support of a parent, and others.

In 12 Am. Jur. 896, 897, it is said that where the subject of a contract is one which involves personal taste or feeling, an agreement that it shall be satisfactory to the promisor necessarily makes him the sole judge of whether it answers that condition. He cannot be required to take it because other people ought to be satisfied with it for that is not what he agreed to do and that a jury should not be permitted to say, in such a case, that a defendant must pay because, by a preponderance of the evidence, he ought to have been satisfied with the work.

In Erikson v. Ward, 266 Ill. 259, cited and relied upon by both parties, a contract which provided that a building was to be constructed according to an architect’s plans and specifications, in a good, workmanlike and substantial manner, to the satisfaction of the defendant, was construed to mean a reasonable satisfaction not arbitrarily exercised. After so holding the court said: “It has been held that where one contracts to furnish another personal property, personal services or works of art that will give satisfaction, if the property or the services furnished are not satisfactory there can be no recovery. (Kendall v. West, 196 Ill. 221; Williams Mfg. Co. v. Standard Brass Co., 173 Mass. 356, 53 N. E. Rep. 862; Zaleski v. Clark, 44 Conn. 223.) The same strictness has not usually been applied to contracts for the construction of buildings.”

Kendall v. West, supra, was an action brought by a specialist in monologue to recover damages from a theatrical manager of a musical company for breach of a contract which provided that he was to render satisfactory services and perform at such places and theaters as his employer might require. The plaintiff was discharged because he refused to comply with the defendant’s request to shorten the time of his performance and to try his part in black face. In sustaining a judgment in favor of the defendant the court said: “The contract of employment provided that appellant should render ‘satisfactory services,’ for which he was to receive the sum of $250 per week. It contained no provision in any manner limiting the appellee in the exercise of his judgment as to what should be deemed ‘satisfactory services.’ The appellant did not undertake to render services which should satisfy a court or jury, but undertook to satisfy the taste, fancy, interest and judgment of appellee. It- was the appellee who was to be satisfied, and if dissatisfied he had the right to discharge the appellant at any time for any reason, of which he was the sole judge.”

In Krompier v. Spivek, 170 Ill. App. 621, it was held that an employment contract by which a designer of ladies’ dresses and capes agreed to render services in a manner satisfactory to his employer may be terminated by the employer if the services are not satisfactory to him and that the employer is the sole judge as to whether the services are satisfactory.

In the course of its opinion in Union League Club v. Blymyer Ice Machine Co., 204 Ill. 117, the court said:

“There are authorities, which hold that, ‘where one party agrees to do a thing to the satisfaction of another, and the excellence of the work is a matter of taste, such, for instance, as a portrait, bust, suit of clothes, dramatic play, or a particular piece of furniture, the employer may reject it without assigning any reason for his dissatisfaction.’ But where the matter involved is not one of ‘taste, fancy or judgment, but of common experience, such as an ordinary job of mechanical work, or the quality of material, a different rule applies, and in such cases, the law will say that what in reason ought to satisfy a contracting party does satisfy him.’ ”

In Pennington v. Howland, 21 R. I. 65, the plaintiff was employed to paint a pastel portrait of the defendant’s wife. The court stated that an instruction to the effect that an artist, if he agreed to paint a picture to one’s satisfaction, has no cause of action for the price unless the buyer is satisfied, however good the picture may be, would state the law correctly and in the course of its opinion said: “When the subject of the contract is one which involves personal taste or feeling, an agreement that it shall be satisfactory to the buyer necessarily makes him the sole judge whether it answers that condition. He cannot be required to take it because other people might be satisfied with it; for that is not what he agreed to do. Personal tastes differ widely, and if one has agreed to submit his work to such a test he must abide by the result. A large number of witnesses mig’ht be brought to testify that the work was satisfactory to them; that they considered it perfect, and that they could see no reasonable ground for objecting to it. But that would not be the test of the contract, nor should a jury be allowed to say in such a case that a defendant must pay because by the preponderance of evidence he ought to have been satisfied with the work — or, in other words, that it was ‘reasonably satisfactory.’ Upon this principle numerous cases have been decided.”

Zaleski v. Clark, 44 Conn. 218, cited with approval in Erikson v. Ward, supra, was an action by a sculptor to recover the contract price of a bust of the defendant’s deceased husband which he had modeled. In its opinion the court said: “Courts of law must allow parties to make their own contracts, and can enforce only such as they actually make. Whether the contract is wise or unwise, reasonable or unreasonable, is ordinarily an immaterial inquiry. The simple inquiry is, what is the contract? and has the plaintiff performed his part of it? In this case the plaintiff undertook to make a bust which should be satisfactory to the defendant. The case shows that she was not satisfied with it. The plaintiff has not yet then fulfilled his contract. It is not enough to say that she ought to be satisfied with it, and that her dissatisfaction is unreasonable. She, and not the court, is entitled to judge of that. The contract was not to make one that she ought to be satisfied with, but to make one that she would be satisfied with. Nor is it sufficient to say that the bust was the very best thing of the kind that could possibly be produced. Such an article might not be satisfactory to the defendant, while one of inferior workmanship might be entirely satisfactory. A contract to produce a bust perfect in every respect, and one with which the defendant ought to be satisfied, is one thing; an undertaking to make one with which she will be satisfied is quite another thing. The former can only be determined by experts, or those whose education and habits of life qualify them to judge of such matters. The latter can only be determined by the defendant herself. It may have been unwise in the plaintiff to make such a contract, but having made it, he is bound by it. ’ ’

Gibson v. Cranage, 39 Mich. 49 was a suit to recover the contract price for making a portrait of the deceased daughter of the defendant. After the picture was finished it was shown the defendant, who was dissatisfied with it and refused to accept it. In sustaining a judgment for the defendant, the court said: “The plaintiff agreed that the picture when finished should be satisfactory to the defendant, and his own evidence showed that the contract in this important particular had not been performed. It may be that the picture was an excellent one and that the defendant ought to have been satisfied with it and accepted it, but under the agreement the defendant was the only person who had the right to decide this question. Where parties thus deliberately enter into an agreement which violates no rule of public policy, and which is free from all taint of fraud or mistake, there is no hardship whatever in holding them bound by it.

“Artists or third parties might consider a portrait an excellent one, and yet it prove very unsatisfactory to the person who had ordered it and who might be unable to point out with clearness or certainty the defects or objections. And if the person giving the order stipulates that the portrait when finished must be satisfactory to him or else he will not accept or pay for it, and this is agreed to, he may insist upon his right as given him by the contract.”

In his letter to appellant from Toledo on August 3, 1937, appellee wrote that he would do all in his power to make this second portrait as outstanding and exact a likeness of appellant’s father as the first one, that he was pleased to paint it on his own initiative without obligation on the part of appellant and added ‘ ‘ and to your entire satisfaction.” Under the foregoing* and many other authorities, under this arrangement appellant must be held to be the sole judge whether he would accept the portrait and the trial court erred in not so instructing the jury.

The evidence is conflicting as to whether or not appellant did accept the portrait. He testified that when it was left at his home it was not satisfactory and he did not accept it hut that the understanding between the parties was that the portrait was left at his home during the holidays and thereafter he would determine whether he would accept it or not. Appellee’s testimony was that after the slight corrections were made appellant expressed himself as satisfied and requested appellee to send him a bill before he left Rockford and that he would pay it. Whether there was or was not an acceptance of the portrait presented a question of fact for the jury to determine.

For the error in instructions, however, the judgment must be reversed and the cause remanded.

Reversed cmd remanded.