text:
    The People of the State of Illinois ex rel. Kate Popp, Appellee, v. Robert Kingery, Appellant.
    Gen. No. 39,016.
    Opinion filed May 19, 1937.
    Rehearing denied June 2, 1937.
    Otto Kerner, Attorney General, for appellant; Earl B. Dickerson, Assistant Attorney General, of counsel.
    Lawlor, Walsh & Bernstein, of Chicago, for appellee; Edwin D. Lawlor, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

On October 21, 1935, Kate Popp filed a petition in the superior court of Cook county, by which she prayed that a writ of mandamus issue, directed to Robert Kingery, Director of the Department of Public Works and Buildings of the State of Illinois, commanding him that he forthwith institute appropriate proceedings to ascertain the compensation due the relator for accrued consequential damage to land not taken in the making of a public improvement by the State of Illinois, in accordance with the provision of “An Act to provide for the exercise of Eminent Domain,” approved April 10, 1872, and the amendments thereto, and that such further orders may be made in the premises as justice might require and to the court should seem fit. A motion was made by defendant to dismiss this petition on the ground that it shows on its face that petitioner had an adequate remedy at law for the damages alleged to have been sustained by her, and that it fails to state the facts establishing a legal duty on the part of said defendant to bring such an action as is contemplated and provided for in “An Act to provide for the exercise of the right of Eminent Domain,” approved April 10, 1872, and amendments thereto. We find nothing in the record to indicate whether or not the court passed on this motion. On April 24, 1936, and without proof being offered or received, the court entered the following findings and order, which indicate the facts set forth in the petition upon which petitioner predicates her prayer for relief:

“Findings. That the relator, Kate Popp, resident of Cook County, Illinois, is the owner of a parcel of land described as: Lots One (1), Two (2), Three (3) and Four (4), parts of five (5) and Six (6) and Seven (7), Eight (8), Nine (9), Ten (10), and Eleven (11) in Block One Hundred Sixty-seven (167), and all of Block One Hundred Sixty-six (166), of that part of Blue Island, in Calumet, in Sections Thirty-one (31) and Thirty-two (32), Township Thirty-seven (37) North, Range 14, East of the Third Principal Meridian; which is unimproved and located at the northeast corner of the intersection of Eiverdale Eoad and State Bond Issue Eoad No. 49, in said County; that prior to the year 1934, said Eiverdale Eoad and State Bond Issue Eoad No. 49, were level with the land of said relator; that during the year 1934 and ever since the respondent, Bobert Kingery, has been duly appointed and acting Director of the Department of Public Works and Buildings, of the State of Illinois; that during the said year the respondent caused that part of the said State Bond Issue Eoad No. 49 adjacent to the relator’s land to be depressed twenty (20) feet below its level and caused that part of the said Eiverdale Eoad adjacent to the relator’s land to be raised fifteen (15) feet above its level; that by reason of the change of grade in said roads aforesaid the ingress and egress to relator’s land from the roads aforesaid have been completely cut off and blocked; that by reason of such changes the value of the relator’s land has been greatly destroyed and she has suffered great damages; that it was the duty of the respondent, under the statutes and constitution of this State, to make just compensation to the relator before damaging her property; that it was the duty of the respondent, under the statutes and constitution of this State, in the event that no agreement could be reached with the relator as to her just compensation prior to the damaging of her land, to institute a proceeding under the provisions of ‘An Act to provide for the exercise of the right of Eminent Domain,’ approved April 10, 1872, or such other appropriate proceeding, to the end that the just compensation due the relator should be ascertained by a jury; that although repeated demands have been made upon the respondent to ascertain and pay the just compensation due the relator for her damages aforesaid, or to institute a proceeding under the provisions of ‘An Act to provide for the exercise of the right of Eminent Domain,’ approved April 10, 1872, and the amendments thereto, or such other appropriate proceeding, to the end that the just compensation due the relator might be ascertained by a jury, the said respondent has refused so to do.”
“Order. It is therefore, ordered, adjudged and decreed that a writ of mandamus issue herein commanding the respondent, Robert Kingery, as Director of the Department of Public Works and Buildings of the State of Illinois, to institute with all lawful diligence a proceeding under the provisions of ‘An Act to provide for the exercise of the right of Eminent Domain, ’ approved April 10, 1872, and the amendments thereto, or such appropriate proceeding, to the end that the damages suffered by the relator by reason of the change in grade of that part of the State Bond Issue Road No. 49 and Riverdale Road adjacent to her property may be determined by a jury, in accordance with the statutes and constitution of the State of Illinois; and that said petitioner have and recover from the respondent her costs and charges in this behalf expended, to the entry of which order defendant excepts. ’ ’

Petitioner insists that she has the right to have her damages assessed by a jury, and that this right can only be had under the Eminent Domain Act, Ill. State Bar Stats. 1935, ch. 47; Jones Ill. Stats. Ann. 109.248 et seq.

In Childs & Co. v. City of Chicago, 279 Ill. 623, Childs & Company filed a bill in equity in the superior court of Cook county against the City of Chicago and its commissioner of public works seeking to restrain defendants from constructing a bridge in Monroe street across the Chicago River, until damages which might be occasioned to complainant’s property by reason of such construction, should be first ascertained and paid. The damages there claimed were similar to those claimed in the instant case. After issues joined, a hearing was had and an order was entered dismissing the bill for want of equity. From this order an appeal was taken directly to the Supreme Court. As we gather from the court’s order in the instant case, the fact here, as in the Childs case, is that no part of plaintiff’s land was taken for the making of the improvement referred to in the court’s finding. In holding that the City of Chicago could not be enjoined, the Supreme Court said:

“The principal question open for consideration on this hearing is whether the city, on the facts here stated, can be enjoined, because the complainant will suffer consequential damages from such improvement, from prosecuting a public work without first ascertaining and paying such damages. It is conceded in the briefs that no part of appellant’s premises was sought to be taken and that no direct physical damage to its property was contemplated; that the damages, if any, to be sustained were entirely consequential. This court has frequently considered the question here involved. In County of Mercer v. Wolff, 237 Ill. 74, this court said (p. 76): ‘For such actual damages, though consequential only, as may be sustained by an owner of abutting land through the taking1 of adjoining premises for a public use a remedy is given, and the owner may have his compensation ascertained by a jury, as required by the constitution, in a common law action. But when no part of the land of an abutting owner is taken the constitution does not require the ascertainment and payment of his consequential damages before entry can be made upon adjoining property. Damages resulting to an abutting proprietor, no part of whose land is physically taken, are not within the contemplation of the Eminent Domain Act, but he is remitted to his action at law for his damages, ’ — citing to the same effect Penn Mutual Life Ins. Co. v. Heiss, 141 Ill. 35, Parker v. Catholic Bishop, 146 id. 158, and White v. West Side Elevated Railroad Co., 154 id. 620. That has long been the settled law of this State. Stetson v. Chicago and Evanston Railroad Co., 75 Ill. 74, and cases cited; Bradbury v. Vandalia Drainage District, 236 id. 36; Doane v. Lake Street Elevated Railroad Co., 165 id. 510.”

In Barnard v. City of Chicago, 270 Ill. 27, a common law action was brought against the city by the owner of property abutting upon a public street, to recover damages alleged to have been sustained through the construction of a tunnel in the street adjoining complainant’s land under an ordinance of the City of Chicago. In holding that the property owner could recover in such action under the provision of section 13 of Article 2 of the Constitution of 1870, the Supreme Court said:

“The appellants concede that an action could not have been maintained for such damages under the constitution of 1848. (Nevins v. City of Peoria, 41 Ill. 502; City of Quincy v. Jones, 76 id. 231; Rigney v. City of Chicago, 102 id. 64.) They insist, however, that the right to recover such damages was conferred by the constitution of 1870, which provides, by section 13 of article 2, that private property shall not be taken or damaged for public use without just compensation. The corresponding provision of the constitution of 1848 was that private property should not be taken and applied to public use without just compensation, and under that constitution it was held necessary to a recovery of compensation that there should have been a direct physical invasion of the property. Consequential injuries' to property accomplished without physical contact were not compensated. (Roberts v. City of Chicago, 26 Ill. 249; City of Chicago v. Rumsey, 87 id. 348.) To afford relief in such cases, as was said in Rigney v. City of Chicago, supra, the makers of the constitution of 1870 inserted the provision just referred to. This provision was intended to afford redress in cases of damages where there was no remedy under the constitution of 1848, and accordingly in the Rigney case the plaintiff was held entitled to damages for the construction of a street improvement more than two hundred feet distant from his property, on another street, which made his access to the improved street less convenient. It was said: ‘In all cases, to warrant a recovery it must appear there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally. In the absence of any statutory or constitutional provisions on the subject the common law afforded redress in all such cases, and we have no doubt it was the intention of the framers of the present constitution to require compensation to be made in all cases where, but for some legislative enactment, an action would lie by the common law.
“Owners of property bordering upon a street, in addition to the public right of travel which they enjoy in common with all citizens, have certain private rights incidental to their ownership of abutting property. Among these is the right of access to and egress from the property by way of the street, and this right cannot now be taken away or materially impaired without compensation to the extent of the damages suffered. (City of Chicago v. Union Building Ass’n, 102 Ill. 379; Illinois Malleable Iron Co. v. Lincoln Park Comrs., 263 id. 446.) Another such right, of which the abutting owner may not now be deprived without compensation, is that of having light and air from the public highway, unobstructed by any encroachment on the street. (Field v. Barling, 149 Ill. 556.) As has been seen, under the constitution of 1848 these rights were not protected from destruction in the making of public improvements. If the body of the property itself was not interfered with, these incorporeal rights might be wholly destroyed. Since the constitution of 1870, any change in a street which has injuriously affected the access to abutting property has given a right of action to the owner for the damage to his property. (City of Elgin v. Eaton, 83 Ill. 535; Chapman v. City of Staunton, 246 id. 394; Village of Grant Park v. Trah, 218 id. 516; Shrader v. Cleveland, Cincinnati, Chicago and St. Louis Railway Co., 242 id. 227.) ”

Section 13 of Article 2 of the Constitution of 1870, Illinois State Bar Stats. 1935, provides:

Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law.” (Italics ours.)

Chapter 47, IT 1, entitled, “Eminent Domain,” Illinois State Bar Stats. 1935; Jones Ill. Stats. Ann. 109.248, provides:

“That private property shall not be taken or damaged for public use without just compensation; and that in all cases in which compensation is not made by the State in its corporate capacity, such compensation shall be ascertained by a jury, as hereinafter prescribed.” (Italics ours.)

Prior to the Constitution of 1870, and under the Constitution of 1848, there was no provision in either the constitution nor in the statute to the effect that even compensation for land taken for public use, either by the State or by any other public body, should be ascertained by a jury. The method provided, in general, was that the court appoint commissioners to make an award. These commissioners reported their appraisement of the value of the land taken to the .court and upon such report, judgment was entered. (See Constitution of 1848, Gross Statutes of Illinois, 1818-1869, page 658, and Board of Trustees of Illinois & Michigan Canal v. City of Chicago, 14 Ill. 334.) The Director of the Department of Public Works and Buildings of the State of Illinois is merely an officer and agent of the State. One claiming compensation for land “taken or damaged for public use by the state acting in its corporate capacity,” as is the case here, is not given the right, either by the constitution or the Eminent Domain Act, to have such compensation determined by a jury, either in advance of or after the taking or damaging. Further, ‘ ‘ The State could not be made a party defendant, nor compelled to sue. Her sovereignty would protect her from being coerced to prosecute or defend. Osborn v. U. S. Bank, 9 Wheat. R. 738; Webster v. French, 11 Ill. R. 254.” (Moore v. School Trustees, 19 Ill. 83, page 86.) The effort here, to coerce the Director of the Department of Public Works and Buildings of the State of Illinois, is an effort to coerce the sovereign State. If the petitioner has been damaged, as claimed, her remedy is provided by “An Act to create the Court of Claims and to prescribe its power and duties.” (Chapter 37, 1Í1T 462 to 474, Illinois State Bar Stats. 1935; Jones Ill. Stats. Ann. 126.057-126.069.)

The judgment of the superior court is reversed.

Reversed.

Denis E. Sullivan, P. J., and Hebel, J., concur.


source: Caselaw Access Project

author: Mr. Justice Hall Denis E. Sullivan, P. J.,

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Julius P. Waitches, Plaintiff in Error.
    Gen. No. 39,032.
    Denis E. Sullivan, P. J., dissenting.
    Opinion filed May 19, 1937.
    Rehearing denied June 2, 1937.

      Ode L. Rankin, of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Richard H. Devine and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

On December 31, 1935, defendant was found guilty of the crime of conspiracy, and sentenced to the penitentiary for an indeterminate period of not less than one nor more than five years, and to pay a fine of $1. By this writ of error, he seeks to have the judgment reversed.

Defendant, together with Bella Butman, John J. Bagdonas, Nick Radis, Paul Zalink, John Dailyde and Thomas Butman, was indicted on a charge of conspiring to do an act injurious to the administration of public justice by forging, uttering, presenting and proving a purported will of James Thomas Kelly, deceased, and to unjustly obtain property of the estate of James Thomas Kelly, deceased, by forging, uttering and probating* such will. As originally returned, the indictment contained 14 counts. Prior to the trial, counts 1, 2, 3 and 4, which charged forgery, and counts 9, 10, 11 and 12, which charged conspiracy, were dismissed. The cause was tried on counts 5, 6, 7, 8, 13 and 14. Counts 5 and 6, each, in substantially the same terms, charge a conspiracy to falsely make, forge and counterfeit a will purporting to be the last will and testament of James Thomas Kelly, deceased, with intent to prejudice, damage and defraud the estate of James Thomas Kelly, deceased. Counts 7 and 8, each, in substantially the same terms, charge a conspiracy to utter, publish and file in the probate court of Cook county, a false, forged and counterfeited will and testament of James Thomas Kelly, deceased, with intent to defraud the estate of James Thomas Kelly, deceased. Count 13 charges a conspiracy to corruptly do an illegal act, injurious to the administration of public justice by obtaining possession, control and ownership, and to deprive its lawful owners and rightful recipients of a large amount of money, real and personal estate, belonging to James Thomas Kelly, deceased, at the time of his death, by forging and counterfeiting a false and fraudulent will and testament purporting to be the last will and testament of James Thomas Kelly, deceased, with intent to thereby prejudice, damage and defraud any persons, any body politic and any body corporate that would be lawfully entitled to receive the money and property belonging to such estate, and by uttering and publishing the counterfeited will and testament, and filing the same in the probate court of Cook county, knowing it to be forged and counterfeited, intending to damage and defraud any person, body politic and any body corporate .that would be entitled to the same. Count 14 charges that the defendant conspired to unjustly obtain possession, control and ownership, and to deprive its lawful and rightful recipients of a large amount of money, real and personal estate belonging to James Thomas Kelly, deceased, at the time of his death, by forging and counterfeiting a false and fraudulent will and testament, purporting to be the last will and testament of James Thomas Kelly, deceased, with intent to thereby prejudice, damage and defraud any persons, any body politic and any body corporate that would be lawfully entitled to receive the money and property of such estate, and by uttering and publishing such forged and counterfeited will and testament, and by filing the same in the probate court of Cook county, knowing it to be forged and counterfeited, and intending thereby to damage and defraud the persons mentioned. In the last mentioned counts, it is also charged that through such conspiracy, the defendants caused the forged and alleged counterfeited will to be proved and allowed and admitted to probate in the probate court of Cook county, by false and perjured testimony, tending to prove the alleged will to be true and genuine, and by suborning the unlawful, wilful, corrupt and false oaths of witnesses on the hearing of the petition to probate the will, and by offering perjured testimony at such hearing, knowing the same to be false.

A motion in writing was made to quash the indictment upon the ground that it was insufficient because it failed to disclose the names of the persons, body politic or body corporate, whom or which the defendant was guilty of having damaged or defrauded, and that the indictment in each count fails to disclose and describe the property and the value thereof, of which the defendants are charged with having defrauded the estate of James Thomas Kelly, deceased. Also, that the counts remaining in the declaration are insufficient under the statute of the State of Illinois. As to the last point, the written motion to quash the indictment fails to particularize as to what is meant by “insufficient.”

From the brief of defendant, we conclude that the principal point urged and relied upon in his motion to quash, is that the charge that the acts which defendant is alleged to have committed, and to thereby defraud “the estate of James Thomas Kelly, deceased,” is not sufficient because “the estate of James Thomas Kelly, deceased,” is neither a natural person nor a legal entity, and that, if the persons against whom the charges alleged to have been committed, are unknown, such facts should be stated in the indictment. People v. Brander, 244 Ill. 26, and People v. Picard, 284 Ill. 588, are cited as authority for the defendant’s contention. In People v. Krittenbrink, 269 Ill. 244, the defendant was charged with receiving a quantity of stolen drugs from Parke, Davis & Company, the owner of' the property. The court held that the proof to sustain a conviction was insufficient because there was no evidence offered that Parke, Davis & Company was a corporation, as alleged in the indictment. In People v. Brander, supra, it was charged that defendant, as agent and clerk in the employment of “American Express Company, an association,” was guilty of embezzlement of goods, money and property from such company, and in holding that a conviction under such indictment could not be sustained, the court said:

“As the indictment does not allege that the American Express Company is a joint stock company, the usual attributes of that sort of company are not to be implied, and the statements of counsel add nothing to the averments of the indictment. If the company owes its existence to the statute of any State and is such an entity as may own property by the name of ‘American Express Company,’ the facts should have been alleged.” It is insisted that these cases are decisive of the point raised here. To the contrary is the case of Billings v. State, 107 Ind. 54, where it was charged that after the death of a decedent, the defendant forged a note and filed it as a claim against an estate. He was charged with having done so for the purpose of defrauding “the estate of Louis C. Morgan.” In sustaining the indictment and the conviction of the defendant charged with the crime, and where the same question in effect was raised as is raised here, to wit: that the indictment did not charge the defendant with intent to defraud any person, that court said":

“This intention cannot prevail. The estate of a decedent is a person in legal contemplation. ‘The word “person,” ’ says Mr. Abbott, ‘in its legal signification, is a generic term, and includes artificial as well as natural persons.’ 2 Abb. Law Diet. 271; Douglass v. Pacific, etc., Co., 4 Cal. 304; Planters, etc., Bank v. Andrews, 8 Port. (Ala.) 404. It is said in another work that ‘persons are of two kinds: natural and artificial. A natural person is a human being. Artificial persons include (1) a collection or succession of natural persons forming a corporation; (2) a collection of property to which the law attributes the capacity of having rights and duties. The latter class of artificial persons is only recognized to a limited extent in our law; examples are — the estate of a bankrupt or deceased person. ’• 2 Rapalje & L. Law Diet. 954. Our own cases inferentially recognize the correctness of the definition given by the authors from whom we have quoted, for they declare that it is sufficient, in pleading a claim against a decedent’s estate, to designate the defendant as the estate of the deceased person, naming him. Ginn v. Collins, 43 Ind. 271. Unless we accept this definition as correct, there would be a failure of justice in cases where, as here, the forgery is committed after the death of the person whose name is forged; and this is a result to be avoided if it can be done consistent with principle. We perceive no difficulty in avoiding such a result; for, to our minds, it seems reasonable that the estate of a decedent should be regarded as an artificial person. It is the creation of law for the purpose of enabling a disposition of the assets to be properly made, and, although natural persons as heirs, devisees, or creditors, have an interest in the property, the artificial creature is a distinct legal entity. The interest which natural persons have in it is not complete until there has been a due administration; and one Who forges the name of the decedent to an instrument purporting to be a promissory note must be regarded as having intended to defraud the estate of the decedent, and not the natural persons having-diverse interests in it, since he cannot be presumed to have known who those persons were, or what was the nature of their respective interests. The fraudulent intent is against the artificial person, the estate, and not the natural persons who have direct or contingent interests in it.”

Bouvier’s Law Dictionary, Vol. 1, page 1075, in its definition of the word “estate,” among other things, says: “As the word is commonly used in the settlement of estates, it does include the debts as well as the assets of a bankrupt or decedent, all his obligation and resources being regarded as one entirety. See Davis’s Heirs v. Elkins, 9 La. 135.” As stated, the word “estate” as applied to the property of a deceased person is a generic term. Standard Dictionary defines “estate” as — “One’s entire property or possession; collective assets above or against liabilities; especially property left after death.” Illinois State Bar Stats. 1935, chapter 3, is entitled, “Administration of Estates.” This statute, among other things, provides for the filing of “claims against estates.” Section 4 of this act provides that “the power of the executor over the testator’s estate, before probate of the will and obtaining letters testamentary, shall extend to the burial of the deceased, the payment of necessary funeral charges, and the taking care of the estate, etc.” Chapter 148, Illinois State Bar Stats. 1935, entitled, “Wills,” has a number of sections in which the word “estate” has a generic meaning. Section 1 of this chapter provides that “every male person of the age of twenty-one years, and every female of the age of eighteen years, being of sound mind and memory, shall have power to devise all the estate, right, title and interest, in possession, reversion or remainder, which he or she hath, or at the time of his or her death shall have, etc.”

One who is at all familiar with the probating* of wills and the administration of estates, knows that it is usually impossible at the time of the probating of a will to ascertain with certainty just what person or persons might or might not have an interest in the estate of the deceased person, whether as heirs-at-law, creditors or otherwise. It is now, and always has been, the custom to entitle a cause in the probate court as “In the matter of the estate” of such person.

Par. 1 of chapter 39, Illinois State Bar Stats. 1935, entitled “Descent”; Jones Ill. Stats. Ann. 110.193, provides that: “. . .If the intestate leaves no kindred, and no widow or husband, his or her estate shall escheat to and vest in the county in which said real or personal estate, or the greater portion thereof, is situated. ’ ’

Section 6 of par. 6 of the Revenue Act, chapter 120, Illinois State Bar Stats. 1935; Jones Ill. Stats. Ann. 119.006, provides that:

“Personal property shall be listed [for taxation] in the following manner: . . . the property ... of the estate of a deceased person, by the executor or administrator. ’ ’

In Wharton on Criminal Law, 10th Ed. Vol. 2, section 1396, it is said:

“Where, therefore, the persons injured were defined at the time of the conspiracy and ascertainable by the pleader, their names should be specified in the indictment. Where, however, the conspiracy was to defraud a class not capable of being at the time resolved into individuals, or to defraud the public generally, then the specification of names is impractical and unnecessary. ’ ’

In McLain on Criminal Law, Vol. 2, section 982, it is said:

“Where the charge is of a conspiracy to defraud in general it is not necessary to specifically allege the name of the person or persons intended to be defrauded. It is enough to charge the intent to defraud persons of a particular class or description.”

Paragraph 261 of chapter 38, Illinois State Bar Stats. 1935; Jones Ill. Stats. Ann. 37.219, provides that:

“Every person who shall falsely make, alter, forge or counterfeit any record or other authentic matter of a public nature, or any charter, letters, patent, deed, lease, indenture, writing, obligatory, will, testament, codicil annuity bond, covenant, post note, check, draft, bill of exchange, contract, promissory note, due bill for the payment of money or property, receipt for money or property, power of attorney, any Auditor’s warrant for the payment of money at the treasury, county order, or any accountable receipt, or any order or warrant, or request for the payment of money or the delivery of goods or chattels of any kind, or for the delivery of any instrument of writing or acquittance, release or receipt for money or goods, or any acquittance, release or discharge for any debt, account, action, suit, demand or other thing, real or personal, or any transfer or assurance of money, stock, goods, chattels or other property whatever, or any letter of attorney or other power to receive money, or to receive or transfer stock or annuities, or to let, lease, dispose of, alien or convey any goods or chattels, lands or tenements, or other estate, real or personal, or any acceptance or indorsement of any bill of exchange, promissory note, draft or order, or assignment of any bond, writing obligatory or promissory note for money or other property, or any ticket or pass for the passage of any person upon any railroad or other conveyance, or for the admission of any person to any entertainment for which a consideration is required, or any other written instrument of another, or purporting to be such, by which any pecuniary demand or obligation, or any right in any property is, or purports to be created, increased, conveyed, transferred, diminished or destroyed; or shall counterfeit or forge the seal or handwriting of another, with intent to damage or defraud any person, body politic or corporate, whether the said person, body politic or corporate reside in or belong to this State or not; or shall utter, publish, pass or attempt to pass as true and genuine, or cause to be uttered, published, passed, or attempted to be passed as true and genuine, any of the above named false, altered, forged or counterfeited matters, as above specified and described, knowing the same to be false, altered, forged or counterfeited, with intent to prejudice, damage or defraud any person, body politic or corporate, whether the said person, body corporate or politic reside in this State or not; every person so offending shall be deemed guilty of forgery, and shall be imprisoned in the penitentiary not less than one year nor more than fourteen years.”

In Cole v. People, 84 Ill. 216, the Supreme Court said:

“It will be observed the indictment charges the offense, substantially, in the language of the statute, that defendants ‘ unlawfuly, feloniously, wilfully and fraudulently did conspire and agree together, with the fraudulent intent wrongfully and wickedly to injure the administration of public justice, by then and there unlawfully, wilfully and fraudulently attempting to obtain and procure a decree of divorce,’ in the Superior Court of Cook County, and that is all the law requires. By our laws every indictment or accusation of the grand jury shall be deemed sufficiently correct which states the offense in the terms and language of the Criminal Code, or so plainly that the nature of the offense may be easily understood,”

We are of the opinion that the indictment meets all the requirements of the law, that the defendant was fully and definitely apprised of the charge made against him in the language of the statute, and that the court was not in error in denying the motion' to quash.

Waitches obtained a severance, and was tried alone.

Nick Radis, one of the persons indicted with Waitches, and who, prior to the time of the trial, had pleaded guilty to the charge of conspiracy, testified to the effect that he was acquainted with John Bagdonas, an undertaker; that the witness worked for Bagdonas as chauffeur and assistant, and that for his, the witness ’, services he was paid a commission on the amount paid the undertaker for funeral expenses; that he had known James Thomas Kelly during his lifetime; that on February 26, 1935, in the late afternoon or evening he, the witness, was in Bagdonas’s establishment at 2506 West 63rd street, Chicago; that prior to that time he had received a call from Mrs. Bagdonas, in which she told the witness to go to 651 West Madison street, where someone had died; that the witness proceeded to this place and found Mrs. Butman there, and that he then communicated with John Bagdonas; that they then proceeded to 6743 Irving Park Boulevard, the residence of Mrs. Butman, at which place he arrived about 8:30 or 9 o’clock in the evening; that at that time the body of James Thomas Kelly was lying in bed, and that a Dr. Hurwitz there signed a death certificate; that after the death certificate was signed, the witness took the body of Kelly in his car to Bag-donas’s undertaking establishment and placed the body in the embalming room and then left; that on February 27, 1935, the witness returned to the undertaking establishment at about 2 o’clock in the afternoon and found Bagdonas there; that Bagdonas talked over the telephone to the defendant Waitches, and that Waitches came to the undertaking establishment a short time thereafter; that a short time after Waitches’s arrival, he saw Bagdonas, Mrs. Butman, Tom Turie, Tom Butman and Waitches in the private office of the Bagdonas establishment, and that at that time, Waitches was sitting in a chair at the typewriter desk, and that Bagdonas was sitting near him; that Waitches held a blank form of will and asked for certain information about it from Mrs. Butman; that Waitches asked Mrs. Butman who signed the name of James Thomas Kelly — who had died the day before — - to this will, and that Mrs. Butman explained to Waitches that the signature was that of James Thomas Kelly, that Kelly had left everything to her, Mrs. But-man, . all the bank books, money and real estate, and that Kelly wanted Bagdonas to be the undertaker, for which services Bagdonas was to receive $4,500; that the first time he, the witness, saw the paper which purported to be the will of Kelly, it was in Waitches’s hand, and that at that time, it did not have the signature of Paul V. Zelink or John Dailyde on the instrument. The purported will of James Thomas Kelly, which was offered for probate and introduced in evidence in this case, shows the signatures of Paul V. Zelink and John Dailyde thereon as witnesses. The Staté had theretofore offered in evidence two certain documents, one of which contained a row of figures which totaled $45,829.03, and the other which contained a memoranda as follows: “Church $1,000, tombstone $1,000, funeral $1,000, attorney 6%, Radis, rem. (presumably remainder) to Butman,” with a memorandum at the bottom to this effect: “All of the foregoing being on piece of adding machine paper and in the handwriting of the defendant, J. P. Waitches.” As to these documents, Radis testified, in substance, that Waitches wrote the figures thereon in green ink, at the time they were discussing the will. This witness also testified that in the will as finally made up, he was named as executor, and that the witness at that time stated to Waitehes that he had never had such a job as that of being executor, and that Waitehes then explained to him that he, the witness, would have nothing much to do, as he, Waitehes, together with Mrs. Butman, would take care of it, and that he, the witness, should be present in the probate court to represent the estate of Kelly, together with Mrs. Butman. Radis also testified to the effect that he there understood from Mrs. Butman that Bagdonas was to receive $4,500 for funeral expenses; that at the time of this conversation with Waitehes and Mrs. Butman, Waitehes had in his possession certain keys and eight bank books containing the name of Kelly, and that Waitehes then and there typed the will, gave it to Mrs. Butman after it was completed, and that Waitehes then said: “You’ve got to have two witnesses,” and that Waitehes then took his brief case and left. Radis further testified to the effect that at the time and place just referred to, all the parties were speaking in the Lithuanian language, and that he, being a Lithuanian, understood all that was said; that after the conversation and incidents related, he received the completed document purporting to be the will of Kelly, took it to Father Zelink, 2204 North Clark street, showed him the document, and said: “Mrs. Butman wants your signature on that,” and that Zelink then signed the will as a witness and that at this time, the will was fully made out, except for the signatures of Zelink and Dailyde; that he Radis, then took it to Dailyde and said to him, “Mrs. Butman wants your signature on this document”; that he then took Dailyde to Mrs. Butman, and that Dailyde then signed his name to the document as a witness; that Dailyde saw the body of Kelly in the back chapel on the evening of February 28, 1935, Badis also testified to the effect that he then delivered the will to Waitches at Waitches’ office; that Zelink was present at that time, and was asked by Waitches if that was his signature, and Zelink replied that it was; that he, Badis, procured a petition for letters testamentary in the estate of Kelly from Waitches at his office on the first or second of March, 1935, and that Waitches told him that Mrs. Butman was supposed to sign the document; that he, the witness, then immediately went to Mrs. Butman and that she signed her name to it; that Waitches told the witness that the next day at 9:30 Mrs. Butman and the witness should go to the probate court, which they did, and that they there met Waitches, and that Waitches filed the purported will of Kelly, a memorandum of bank balances shown by the bank books, memorandum of provisions in the will, the keys and eight bank books in the name of Kelly, the agreement of Mrs. Butman to pay the funeral expenses, her agreement to pay executor’s fees, together with the petition for the probating* of the will; that they went before the assistant probate judge; that Mrs. Butman then took the witness stand and testified, and that shortly thereafter he and Mrs. Butman filed a petition in the probate court, signed by them, which petition prayed that the court allow Mrs. Butman, who also had been named executor in the will, to expend the sum of $4,500 in and about the preparation of the body of Kelly for burial, and the sum of $1,000 to cover services and mass in the Holy Catholic Church, of which Zelink was the pastor. Badis further testified that the petition just referred to, which he signed, was given to him by the defendant Waitches, and that Waitches told the witness to sign his name to it, which he did, and that Mrs. Butman also signed. (The petition bears the date of March 6th, 1935.) This witness also testified that he had known Waitehes since the year 1922. On cross-examination, Eadis testified to the effect that before Waitehes filled in the blank spaces on the typewriter, he saw Waitehes making notes on a piece of paper; that he heard Mrs. Butman tell Waitehes that Kelly, the deceased, had said, “I leave everything to you, all my estate”; that at that time, Bagdonas said he was to have $4,500 for his services, and that the witness heard talk about attorney’s fees, and that Bagdonas stated that the fees for attorneys were 5 or 6 per cent.

The petition filed by the defendant Waitehes in the probate court, on March 6,1935, referred to by the witness Radis, is in words and figures as follows:

“To the Honorable John F. O’Connell, Judge of said Court:

“The petition of Bella Butman and Nick Radis respectfully showeth that they are residents of said County, that on the 26th day of February, A. D. 1935, James Thomas Kelly, also known as James T. Kelly, and as Thomas Kelly, of Chicago, in said County, departed this life at Chicago leaving a last will and testament, duly signed and attested, as your petitioner believes, which they now present to your Honor for Probate. That said Testator in said will nominated your petitioners executors thereof.”

[Description of property in the estate.]

“That the value of the whole estate of said deceased does not exceed Fifty Thousand ($50,000.00) Dollars. That said deceased left him surviving:

“Names Relationship Residence
“No known heirs at law
or next of kin
“Unknown heirs.
“his only heirs at law. That the names of residences of the legatees and Devisees under the will of said deceased are as follows:
“Bella Butman
“That the petitioners reside at 6743 Irving Park Blvd., and 10734 South Michigan Ave., and are willing to accept and undertake the trust confided to them in said will, wherefore your petitioners pray that said will may be admitted to probate, and letters testamentary thereon may be issued to them after proper hearing and proof, and that the hearing on said petition may be set for the......day of......, A. D. 19.., at .... o’clock......M. or as soon thereafter as the matter can be heard, and that all other orders necessary may be made.
“Your petitioners further represent to your Honor that Victor T. Petkus, David G-. Stone and Walter Koessler are persons of discretion, not related to the deceased nor interested in the administration of his estate and they respectfully recommend their appoint' ment by the Court as appraisers.
“Bella Butman and Nick Radis, being duly sworn say they have heard read the foregoing petition by them subscribed, and know the contents thereof, and that the same is true.
“(signed) Bella Butman
(signed) Nick Radis
“Subscribed and sworn to before me, Mitchell C. Robin, Clerk of the Probate Court of Cook County, this 6th day of March, A. D. 1935.
“(signed) Mitchell C. Robin,
Clerk.
“File No. 200316
Docket 342 Page 568
Probate Court of Cook County
Estate of James Thomas Kelly,
Deceased.
“Petition oe Bella Butman and Nick Radis For Proof of Will and Letters Testamentary
Appraisers :
Victor T. Petkus
' David Gi. Stone
Walter Koessler
J. P. Waitches
Lawyer
2 East 103rd Place
103rd PI. & State St.
Pullman 5950 Chicago”
The following is a copy of the document offered for probate as the will of James Thomas Kelly:
“In The Name of God, Amen.
“I, James Thomas Kelly, of Chicago, in the County of Cook and State of Illinois, being of sound mind arid memory, and considering the uncertainty of this frail and transitory life, do, therefore, make, ordain, publish and declare, this to be my last Will and Testament.
“First, I order and direct that my executors hereinafter named pay all my just debts and funeral expenses as soon after my decease.as conveniently may be.
“Second. After the payment of such funeral expenses and debts, I give, devise and bequeath to my esteemed friend Bella Butman of 6743 Irving Park Boulevard, Chicago, Illinois, all my estate, real, personal and mixed of every kind and description, of every kind and description and wheresoever situated, including all Bank accounts and all other assets, subject however, to the payment by the executors of this my will, out of my estate, of the following amounts to the following persons: To any Roman Catholic Church parish to be named by said Bella Butman the sum of One Thousand Dollars for church services in and about my burial and for Holy Masses for my soul; One Thousand Dollars for a Tomb Stone; Forty Five Hundred Dollars to J. J. Bagdonas & Company for favors rendered to me personally and in full for all funeral charges; Six per centum of the total amount of my estate to J. P. Waitches in full for his services to be rendered by him in and about the administration of my estate, and if he shall refuse to act, then to any attorney rendering such service; and four per centum to Nick Radis, which person is to be one of the executors of this will for his services as such executor, and the entire remainder of my estate to said Bella Butman, my dearest friend, to the exclusion of any and all persons, to her exclusive use and benefit forever.
“Lastly, I make, constitute and appoint Bella But-man and Nick Radis to be executors of this, my last will and testament, hereby revoking all former Wills by me made, and they shall file their personal bonds, sureties thereon are hereby waived.
“In witness whereof, I have hereunto subscribed my name and affixed my seal, the 30th day of January, in the year of our Lord, One Thousand Nine Hundred and Thirty Five.
“(Signed) James Thomas Kelly (Seal)
‘ ‘ This instrument was, on the date of the date hereof, signed, published and declared by the said testator James Thomas Kelly to be his last Will and Testament, in the presence of us who at his request have subscribed our names hereto as witnesses, in his presence and in the presence of each other. (Signed) Rev. Paul Zelink, residing at 2206 N. Clark St. (Signed) John Dailyde, residing at 1101 W. 101 Str.” The outside of the will is labeled as follows: “Will of James T. Kelly, Deceased. Filed Mar. 6, 1935. Mitchell C, Robin, Clerk.”

At the time the petition to probate the will was filed, a further petition was presented to the probate court by Bella Butman and Nick Radis, in which it is recited that James Thomas Kelly left a last will and testament wherein he specifically requested that certain sums be paid for burial expenses; that the assets of the estate amounted to a sum in excess of $46,000, as evidenced by savings account books in the First National Bank of Chicago, and in which they assert that the assets of the estate consist of considerably more cash and personal property yet to be disclosed, that the deceased left no immediate relatives, and they asked for an order authorizing them to expend the sum of $4,500 in the preparation of the body for burial, and the sum of $1,000 to cover the services and masses in the Holy Catholic Church. It is not denied that the will was presented and filed for probate, together with the petition, as claimed, nor that the representations were made to the probate court, as claimed, nor that all the incidents and conversations related by the witnesses took place, as narrated.

John Dailyde and Paul Zelink, who witnessed the will, both testified that the signatures on the claimed spurious will were theirs.

The defendant Waitehes testified that he was born in Chicago, and was 42 years of age; that he was educated in Chicago and at Balford-Johnson Preparatory School, De Paul and Northwestern Universities; that he studied law at both De Paul and Northwestern, and that prior to that, he had had business experience; that he was married and had three children, and was admitted to the bar in the spring of 1919; that he worked as title examiner for the Chicago Title & Trust Company for about two years, and thereafter he began to practice law; that his practice was general, and that he had had considerable probate practice. He stated that he knew Bagdonas and Radis, but that before February 27, Í935, he had not known Bella Butman; that on that date he went to the undertaking establishment of Bagdonas in response to a telephone call from the witness Radis, and arrived there about 2:30 or 3 o ’clock in the afternoon; that when he arrived at this placej there were present Bagdonas, Radis, Mrs. But-man, her son Tom Butman and one Tom Turie; that Mrs. Butman produced a blank form of the will of Kelly, the deceased, which bore Kelly’s signature, and that she said to the witness, 11 This is the will of James Thomas Kelly; I lived with him for seven years and he left his estate to me.” Waitches further testified, in substance, that he looked at the papers and noted that they were not filled out, except for the printed matter and the signature of Kelly; that he asked Mrs. Butman who signed the will, and that she stated that Kelly signed it, and that the reason it was not filled out Was because at the time it was signed, there was no one who knew how to fill it out; that he asked Mrs. Butman what Kelly said at the time, and that she replied that he said: “I am leaving all my estate to my friend, best friend, Mrs. Bella Butman, subject to the payment of certain funeral expenses,” which were fixed at $4,500, “The sum of $1,000 for funeral, $1,000 for a monument, $1,000 for church services and the attorney’s fees limited to six per cent, and the administrator’s fees limited to four per cent”; that he, Waitches, asked Mrs. Butman who was present beside herself at the time of the signing of the will, and that she replied, Bagdonas, Tom Butman and two other witnesses whose names she did not mention; that he asked Bagdonas if he was present when Kelly signed the blank paper and will, and that he said he, Bag-donas, was, and that he saw Kelly sign the will, of which there were two copies; that Bagdonas stated to Waitches that he had recommended Waitches as the lawyer for the estate. Waitches further testified that Mrs. Butman stated in his presence, that at the time Kelly signed the blank wills, he was very ill, and that preparations were then being made for him to go to the hospital, and that Bagdonas had made arrangements for Kelly to go to the hospital; that Bagdonas and Mrs. Butman went to a bank and withdrew $700 for the purpose of paying for the hospital; that when they returned from the bank, Bagdonas went to a stationery store and procured blank forms of wills, brought them back, and that Kelly signed them in blank. Waitches testified that at that time, he asked Mrs. Butman and the others present if, in their opinion, Kelly was of sane mind at the time he signed the blank forms, and that they replied that he was but that he was very ill, and that he, Waitches, told these people that in his opinion and under the law, the will as made out would make a good oral will, and that he thereupon put the uncompleted will in the typewriter and filled in the blank spaces; that by mistake he put in the date of a former will, which was January 30, 1935, instead of the correct date, which was February 3, 1935; that he then told the people that though the matter of six per cent as attorney’s fees was put in the will, nevertheless, the fees would be controlled by the judge of the probate court. Waitches further testified that he asked these people if the document, as completed by the witness, was filled out as Kelly intended, and that they all said that it was; that he told them that at least two credible witnesses would have to be produced in the probate court to show the actual utterances of Kelly, and that he was of sound mind and disposing memory at the time he made these utterances, and that there should be two witnesses who would testify that the will was reduced to writing and within a certain time. He further testified that he made up a statement of the amount of the deposits in the various banks, as shown by Kelly’s bank books; that after the occurrences referred to, he next saw Radis in connection with the matter at the office of the witness, on March 1, 1935; that Radis then handed the witness the will, and that it was the same document that he had previously testified about; that he then noticed that there were two other signatures besides Kelly’s appearing on it, as witnesses, and that the names of the persons were strange to him; that he asked if they had signed it, and Radis answered, “Yes”; that thereafter a priest named Zelink came to his office, and that he Waitehes, asked him if he signed the will as a witness, and that Zelink replied that he did, and that Dailyde also had signed it as a witness, and that Dailyde told Waitehes that he saw Kelly sign it, and that it was written out according to Kelly’s instructions; that Waitehes then asked Zelink if he would appear in the probate court and testify as to the matters talked about, and that Zelink said he would, and that Waitehes thereupon prepared the petition for filing in the probate court, already referred to. Waitehes also stated that he received a bunch of keys, together with bank books belonging to Kelly, and that he knew the usual procedure of the probate court in the matter of filing petitions and the probating of estates of deceased persons, and that he had had about 15 of such cases covering a period of 12 or 13 years; that he handed the will, together with the petition, to the clerk, and that the clerk thereupon fixed a date for the hearing in the matter of the probate of the will; that it was arranged that they were to appear in the probate court on May 16, 1935, at 10 o’clock, and that all the witnesses who were present when Kelly signed the will, were to be present, including those who were present when the will was reduced to writing. On cross-examination, he testified that at the time he performed the acts referred to in his direct examination in the matter of filling out the blank form of will, he had in mind nuncupative wills. He further stated that he was familiar with the section of the statute concerning nuncupative wills, and that the statute provides that the will should be reduced to writing within twenty days. He also testified that he had the usual publication in the Chicago Law Bulletin for claims against the estate.

The testimony of a number of persons as to the general reputation of the defendant Waitehes among his associates as to his honesty, integrity and uprightness prior to March 14, 1935, was offered and received.

Appellant insists that a conspiracy cannot be proved by the acts and declarations of the conspirators done separately, but that the conspiracy itself must be established as an independent fact before the acts and declarations of one conspirator are admissible against the other for any purpose.

In Ochs v. People, 124 Ill. 399, a number of members of the board of county commissioners of Cook county, and other employees, were indicted for conspiracy to defraud the county of Cook, and the point raised there was that, although the evidence might tend to show that there were minor conspiracies between certain ones or groups of the accused, or that one performed one part and another one another part, that the evidence did not show a general conspiracy in which all of the defendants were engaged, and that whatever the conspiracy might have been, it is not the one charged in the indictment. In that case, the defendants were found guilty by a jury, and judgment was entered, and in affirming the judgment, the Supreme Court said:

“As respects the law governing in the proof of a conspiracy, it is stated by Archbold, as follows: ‘A conspiracy is proved, either expressly, or by the proof of the facts from which the jury may infer it. It is seldom proved expressly, nor can a case easily be imagined in which that is likely to occur, unless where one or more of the persons implicated in the conspiracy consents to be examined as a witness for the prosecution. In nearly all cases, therefore, the conspiracy is proved by circumstantial evidence, namely, by proof of facts from which the jury may fairly imply it. It is usual to begin by showing that the defendants all knew each other, and that a certain degree of intimacy existed between them, so as to show that their conspiring is not improbable; and if to this can be added evidence of any consultations or private meetings between them, then there is a strong foundation for the evidence to be subsequently given, namely, of the overt acts of each of the defendants in furtherance of the common design. But although the proof above mentioned is desirable, because it satisfies the jury as you proceed, and they are better able to apply the evidence of the overt acts when it is afterwards given, yet it is not essentially necessary, as the jury, may imply the conspiracy of all from the overt acts of each.’ Archbold’s Grim. Pr. and PI. 619.
“Mr. Grreenleaf says: ‘The evidence in proof of a conspiracy will generally, from the nature of the case, be circumstantial. Though the common design is the essence of the charge, it is not necessary to prove that the defendants came together and actually agreed, in terms, to have that design, and to pursue it by common means. If it be proved that the defendants pursued, by their acts, the same object, often by the same means, one performing one part, and another another part of the same, so as to complete it, with a view of the attainment of the same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object. Nor is it necessary to prove that the conspiracy originated with the defendants, or that they met during the process of its concoction, for every person entering into a conspiracy or common design already formed, is deemed, in law, a party to all acts done by any of the other parties, before or afterwards, in furtherance of the common design.’ 3 Gfreenleaf on Evidence, sec. 92.
“We have quoted thus at large, because what is thus announced seems completely to meet and dispose of the point as to there being conspiracies in groups, and not one general conspiracy, and of the conspiracy being of another kind than the one charged, and of objections On that score to the reception of the evidence of individual acts which was received, and to be in justification of instructions which were given.”

It is also contended by defendant that the court erred in giving the People’s instructions Nos. 11, 21, 24 and 27, and in refusing to give defendant’s refused instruction No. 4. People’s instructions Nos. 11, 21, 24 and 27 are as follows:

“11. The Court instructs the jury that at the time in question in this case there was, and now is, in full force and effect a law in the State of Illinois in substance as follows: 'All wills and testaments by which any lands or real or personal property are devised or bequeathed shall be reduced to writing and signed by the testator or testatrix, or by some person in his or her presence and by his or her direction, and attested in the presence of the testator or testatrix, by two or more credible witnesses, two of whom declaring on oath or affirmation before the County Court of the proper County that they were present and saw the testator or testatrix sign said will, or testament, in their presence or acknowledged the same to be his or her act and deed, and that they believed the testator or testatrix to be of sound mind and memory at the time of signing or acknowledging the same, shall be sufficient proof of the execution of said will or testament to admit the same to record. ’ ”
“21. To constitute the crime of conspiracy, it is not necessary that the conspirators should succeed in their design. It is enough if the common design was formed, in manner and form as charged in the indictment, and that any act was done in furtherance of such design by any one of the conspirators. Nor is any overt act necessary to complete the crime; the offense is complete when the confederacy to pursue the common purpose is made. ’ ’
“24. The Court instructs the jury, as a matter of law, that the defendant has put in evidence his general reputation for honesty, integrity, uprightness, and for professional conduct and ethics; that such evidence is permissible under the law, and is to be by the jury considered as a circumstance in this case. But the Court further instructs the jury that if from all the evidence in this case they are satisfied beyond a reasonable doubt of the guilt of the accused, then it is the duty of the jury to find him guilty, notwithstanding the fact, if it be a fact, that heretofore the accused has borne a good reputation for honesty, integrity, uprightness, and for professional conduct and ethics.”
“27. The Court instructs the jury as a matter of law, that in this state one accused and on trial charged with the commission of a crime may testify in his own behalf or not, as he pleases. You are instructed that when a defendant does testify in his own behalf, then you have no right to disregard his testimony merely because he is accused of crime; that when he does so testify he at once becomes the same as any other witness, and his credibility is to be tested by and subjected to the same tests as are legally applied to any other witness; and in determining the degree of credibility that shall be accorded to his testimony, the jury have a right to take into consideration the fact that he is interested in the result of the prosecution, as well as his demeanor and conduct upon the witness stand; and the jury may also take into consideration the fact, if such is the fact, that he has been corroborated or contradicted by credible evidence, or by facts and circumstances in evidence.”

Instruction No. 4 offered by defendant and refused is as follows:

“4. If the jury believe from the evidence that the defendant, Julius P. Waitehes, erred or mistakenly proceeded in the matter here in question, but did not enter into any of the conspiracies and with the intent as charged in the indictment, the jury should find the defendant not guilty. ’ ’

People’s instruction 11 merely advises the jury as to the law relative to the execution of a will, and is substantially in the language of the statute, and we are unable to see in what particular the defendant could have been damaged. On the contrary, we are of the opinion that under the state of record here, it was a proper instruction for the court to give. As to instruction No. 21, we are of the opinion that it correctly instructed the jury as to the law of conspiracy, as defined by the Supreme Court. See Ochs v. People, supra; Spies v. People, 122 Ill. 1; People v. Poindexter, 243 Ill. 68. As to instructions Nos. 24 and 27, we cannot possibly see how either of these instructions could have in any manner harmed the defendant.

Defendant suggests that in filling out the blanks in the forms of wills signed by the decedent, in having the witnesses’ signatures attached to the same, and in offering the will for probate, he was in good faith, attempting to complete a nuncupative will. Paragraphs 17 and 18 of chapter 148, Illinois State Bar Stats. 1935; Jones Ill. Stats. Ann. 110.229, 110.230, provide the manner in which nuncupative wills shall be completed and offered for probate. They are as follows:

“Par. 17. Sec. 15. A nuncupative will shall be good and available in law for the conveyance of personal property thereby bequeathed, if committed to writing within twenty days after the making thereof, and proven before the county court by two or more credible, disinterested witnesses, who were present at the speaking and publishing thereof, who shall declare, on oath or affirmation, that they were present and heard the testator pronounce the said words, and that they believed him to be of sound mind and memory; and that he or she did at the same time, desire the persons present, or some of them, to bear witness that such was his or 'her will, or words to that effect; and that such will was made in the time of the last sickness of the testator or testatrix; and it being also proven by two disinterested witnesses, other than those hereinbefore mentioned, that the said will was committed to writing within ten days after the death of the testator or testatrix; and no proof of fraud, compulsion or other improper conduct be exhibited, which, in the opinion of said court, shall be sufficient to invalidate or destroy the same; and all such wills, when proven and authenticated as aforesaid, shall be recorded in like manner as other wills are directed to be recorded by this Act: Provided, that no letters testamentary shall be granted on such will, until the expiration of sixty days after the death of the testator or testatrix. (Italics ours.)
“Par. 18. Sec. 16. In all cases where a nuncupative will shall be proved and recorded as aforesaid, the court shall issue a citation to the heirs and legal representatives of the testator or testatrix, if they reside in the county, if not, then said court shall cause an advertisement to be inserted in some one of the newspapers printed in this State, notifying the said heirs and legal representatives of the testator or testatrix, at what time and place letters testamentary will be granted upon such will, requiring* them and each of them to appear and show cause, if any they have, why letters testamentary should not be granted; and if no sufficient cause be shown, letters shall be granted thereon, as in other cases.”

Kelly died on February 26,1935. A petition for the issuance of letters testamentary to Badis and Bella Butman, named in the will as executors, was fded by defendant on March 6, 1935. Sections 2 and 3 of the same act provide the manner in which statutory wills shall be executed, offered for probate and proved, and are as follows:

“Par. 2. All wills, testaments and codicils, by which any lands, tenements, hereditaments, annuities, rents or goods and chattels are devised, shall be reduced to writing, and signed by the testator or testatrix, or by some person in his or her presence, and by his or her direction, and attested in the presence of the testator or testatrix, by two or more credible witnesses, two of whom, declaring on oath or affirmation, before the County Court of the proper county, that they were present and saw the testator or testatrix sign said will, testament or codicil, in their presence, or acknowledged the same to be his or her act and deed, and that they believed the testator or testatrix to be of sound mind and memory at the time of signing or acknowledging the same, shall be sufficient proof of the execution of said will, testament or codicil, to admit the same to record: Provided, that no proof of fraud, forgery, compulsion or other improper conduct be exhibited, which, in the opinion of said County Court, shall be deemed sufficient to invalidate or destroy the same; and every will, testament or codicil, when thus proven to the satisfaction of the court, shall, together with the probate thereof, be recorded by the clerk of said court, in a book to be provided by him for that purpose, and shall be good and available in law for the granting, conveying and assuring the lands, tenements and hereditaments, annuities, rents, goods and chattels therein and thereby devised, granted and bequeathed.” Ill. State Bar Stats. 1935, ch. 148, If 2; Jones Ill. Stats. Ann. 110.214.
“Par. 3. It shall be the duty of each and every witness to any will, testament or codicil, made and executed in this State, as aforesaid, to be and appear before the county court on the regular day for the probate of such will, testament or codicil, to testify of and concerning the execution and validity of the same; and the said court shall have power and authority to attach and punish, by fine and imprisonment, or either, any witness who shall, without a reasonable excuse, fail to appear when duly summoned for the purpose aforesaid : Provided, the said punishment by imprisonment shall in no case exceed the space of twenty days; nor shall a greater fine be assessed, for any such default, than the sum of $50.” Ill. State Bar Stats. 1935, ch. 148, If 3; Jones Ill. Stats. Ann. 110.215.

Defendant’s testimony indicates that he was a practicing lawyer with a number of years experience, and that he had had considerable practice and experience in the probate court of Cook county. According to his testimony, it is shown that every act of his subsequent to the presentation to him of the blank form of will with nothing on it but Kelly’s signature, had for its object the filing and proving in the probate court, a completed document as a will, made, executed and filed in conformity with all the statutory requirements. The undisputed evidence is to the further effect that defendant was the adviser of all the persons charged with the conspiracy from the moment he received this paper into his possession, until it was finally filed in the prohate court, and the time was fixed for taking testimony as to its genuineness by the probate court. Under these circumstances, his testimony to the effect that he was merely attempting to establish and prove a nuncupative will, as provided by statute, is not convincing.

The record indicates that the defendant, and the other alleged conspirators, were examined by the probate judge in the probate court as to their acts and doings in connection with the offering of the alleged spurious will of James Thomas Kelly for probate. A court reporter who took and transcribed shorthand notes of the witness’s testimony in the probate court was produced by the State as a witness in the criminal court, and over the objection of defendant, testified as to questions propounded to and answers given by the defendant in the probate court. In view of the fact that no error is assigned as to the admission of this testimony in this case and no mention of it is made in defendant’s brief, and further in view of the fact that because of defendant’s testimony, which shows him to be guilty of the crime charged beyond a reasonable doubt, we are of the opinion that if error was committed in admitting this testimony in this case, it was harmless, and further that defendant has waived any point that might be raised thereon. In our opinion, the case was fairly presented to the jury, and in view of the fact that there is ample evidence to sustain the verdict, the judgment is affirmed.

Affirmed.

Hebel, J., concurs.

Denis E. Sullivan, P. J.,

dissenting:

I cannot concur in the decision arrived at in the majority opinion or the views therein expressed.

The defendant was previously before this court on charges of a civil contempt of the probate court of Cook county, growing out of some of the transactions involved in this case and the writer concurred in the opinion which was handed down at that time. Defendant now comes before this court charged in an indictment by the grand jury with the crime of conspiracy to defraud. A different situation is here presented and, whether defendant is innocent or guilty, he is entitled to be tried according to the laws of the State in order to determine that fact. I am of the opinion that this was not done. Defendant did not plead guilty. Even if he were guilty, it must be remembered the Supreme Court has many times said that the laws of this State apply to the guilty as well as to the innocent and a conviction cannot be secured excepting under the laws which apply equally to all.

Where a person is convicted by a jury, that conviction should be based upon the hearing of charges as contained in the indictment which should allege that defendant is guilty of violating a law and that someone was unlawfully injured as the result of the acts of the defendant. The jury should not be misled by erroneous instructions as to the law such as the record shows occurred in the trial of this cause.

Sufficient prejudicial errors were committed which entitles the defendant to a reversal of said judgment and a remanding of the cause for a new trial.

To substantiate my opinion I am setting forth the following:

The indictment should have been quashed for the reason that the “Estate of James Thomas Kelly”— which the indictment asserts was defrauded — is not a person, corporation or a legal entity as the statute prescribes. The only persons who could have been defrauded were the possible beneficiaries, such as the heirs, devisees or legatees, or the State, who, if unknown to the grand jury, could be so alleged.

In People v. Ernst, 306 Ill. 452, the court, at page 457, said:

“To constitute the crime of forgery of an instrument it is necessary for the prosecution to prove the forgery was committed with the intent to defraud some person named. (Fox v. People, 95 Ill. 71.) ”

As was said in the case of Downey v. Grigsby, 251 Ill. 568, 572: “The ordinary meaning of the words ‘revert to my estate’ is, ‘return to the aggregate of all the property which I may leave at my death. ’ . . . The word ‘estate’ is not equivalent to ‘heirs.’ When a man makes a will the business in which he engages is the distribution of his estate, usually among his heirs and perhaps other persons. The estate is the subject matter with which he deals; the heirs are possible distributees.”

On the death of a landowher intestate the title to the land vests at once' in his heirs-at-law under the statute of descent. The heirs hold title in their own right, subject only to the payment of the debts of their ancestor for the purposes as described by law, and may sell and convey their title without hindrance. Anderson v. Shepard, 285 Ill. 544.

In the case of People v. Krittenbrink, 269 Ill. 244, the court said:

“The ownership of the property was a necessary averment of the indictment and it was necessary to prove such ownership as alleged.” This would be equally true in an indictment for a conspiracy to forge or defraud.

It is at once apparent that the “Estate of James Thomas Kelly” does not imply the same to be a person, corporation or an entity that may be the owner of the property or have an interest therein. The “Estate of James Thomas Kelly” could not take title to such property, it could not sue or be sued and it could not be charged with a crime. It could not be deceived and does not possess the capacity to sustain an injury of any kind. Such combination of words is merely a phrase or title to describe certain proceedings and does not designate the owners or beneficiaries of the properties involved. Consequently, the counts which charge the defendant with being guilty of defrauding the property instead of the owners thereof cannot stand.

Count 13 of the indictment charges several offenses in one count, namely, “with intent to thereby prejudice, damage and defraud any persons, any body politic and any body corporate that would be lawfully entitled to receive said money and property.” This language is too vague and indefinite. No evidence is offered to show who these defrauded parties were. Even assuming that the estate of James Thomas Kelly is, as the majority opinion assumes, a sufficient entity, no evidence was introduced in the record to show that in fact there were “any persons, any body politic and any body corporate that would be lawfully entitled to receive said money and property. ’ ’ The jury was left to guess who these parties might be.

I do not believe the State should have been permitted to offer over objection of defendant in its case in chief the testimony of the court reporter who read from his notes taken at the time Judge O’Connell of the probate court conducted the examination of the defendant in the contempt proceedings in that court. To have permitted this to have been done was in direct violation of section 9 of Article 2 of the Constitution-which guarantees the right to “meet the witnesses face to face.” The evidence shows that while the defendant was on the witness stand, the probate judge examined him at length. The court made statements of fact while examining the witness implying defendant ’s guilt or his attempt to conceal the facts. To have permitted that testimony to have been read by the court reporter to the jury in this criminal case was not only a violation of defendant’s constitutional rights, but the evidence itself was highly prejudicial and I think the court erred in so doing.

Instruction No. 2 for the State purports to define the crime of forgery and in its description it recites the statute verbatim and tells the jury that “every person who shall utter, publish or pass,” etc., which manifestly was a very prejudicial instruction for the reason that all the counts in the indictment charging forgery were quashed. The defendant was not being tried for the violation of the statute on forgery. The jury would be very likely to take this instruction to mean that the defendant was guilty, without the necessity of proof. As was said in the case of People v. Corbishly, 327 Ill. 312, at page 338: “The vice of giving abstract propositions of law as instructions to a jury is, that the jury are too liable to arrive at the conclusion that the court thinks that the facts stated in such an instruction on which the proposition of law is based have been proved, while the law is that the jury should be required to make the proper finding on such facts.” .

In the case of People v. Crane, 302 Ill. 217, at page 227, the court said: ‘1 Counsel for the State argue that it is not error to give an instruction in the language of the statute. This is sometimes true, but' where the statute defines more than one crime, as is the case in the section referred to, such rule cannot apply. The contemplation of the law is that the jury shall be instructed only concerning the crime of which the defendant stands charged, and it is not a sufficient answer to say that the instruction is in substantially the language of the statute. (People v. Jones, 263 Ill. 564.)”

Instruction No. 11 is a mere recitation of the statute, which says: “All wills and testaments,” etc. The defense in this case was that the defendant intended to make a nuncupative will — a spoken will — disposing of personal property of the deceased; that the defendant was not contending that the will as filed came under section 2 of the act in regard to wills, but that it came under chapter 148, par. 17, Ill. State Bar Stats. 1935, which provides for nuncupative wills. The defense rightfully claims that in stating the law as it did in this instruction, the court entirely destroyed and eliminated a consideration of the defense urged by the defendant relating to nuncupative wills.

Instruction No. 24 for the State minimized the testimony of the judges and others who testified as to the good reputation of the defendant in the community prior to the time of the indictment and attempted to minimize the probative force of such evidence. Said instruction reads in part as follows: “. . . that such evidence is permissible under the law, and is to be by the jury considered as a circumstance in this case. ’ ’ The record shows that this evidence was offered and not contradicted. The language used in this and similar instructions was by implication condemned in the case of People v. Munday, 280 Ill. 32, 64. The jury should have been told that it was to be considered as competent evidence and not as a circumstance in the case.

Instruction 27 is a lengthy instruction relative to the testimony given by defendant at the trial and contains the following language:

“. . . and in determining the degree of credibility that shall be accorded to his testimony, the jury have a right to take into consideration the fact that he is interested in the result of the prosecution, as well as Ms demeanor and conduct upon the witness stand; and the jury may also take into consideration the fact, if such is the fact, that he has been corroborated or contradicted by credible evidence, or by facts and circumstances in evidence.”

As the Supreme Court said of a similar instruction in the case of People v. Washington, 327 Ill. 152, at page 158: “It was error to give this instruction in

this case, as it applies these rules to the testimony of plaintiff in error without applying them to the testimony of the other witnesses.”

It is not a sufficient answer to these palpable errors to say that the defendant is guilty. A trial by jury is the method provided by law for determining such a question and the trial should be conducted according to the law which in this case, as shown by the record, was not done.

In view of the errors committed at the trial, to which I have called attention, I feel impelled to dissent from the majority opimon. I believe that the judgment of conviction should be reversed and the cause should be remanded for a new trial.


author: Mr. Justice Hebel

text:
    Vincent Benatti, Appellee, v. John Hancock Mutual Life Insurance Company, Appellant.
    Gen. No. 39,012.

      Opinion filed May 19, 1937.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellant ; Nathaniel Rubinkam and William S. Allen, of Chicago, of counsel.
    John A. Nordstrand and William C. Riley, both of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

The defendant, John Hancock Mutual Life Insurance Company, appeals from a judgment entered in the municipal court of Chicago in the sum of $600 in favor of the plaintiff. The judgment was entered in an action by the plaintiff based upon a life insurance policy issued by the defendant on the life of Dolores Benatti, wherein the plaintiff was named beneficiary to receive the amount of the insurance upon the death of the insured, which occurred on March 24, 1935.

No question is raised by this appeal upon the pleadings filed in the case by the parties.

From the facts in the record it appears that on the 29th of June, 1932, the defendant company issued its policy of insurance on the life of Dolores Benatti. The policy provides that the company will pay the amount set forth in the schedule to the'plaintiff as beneficiary upon receipt of satisfactory proof of death. The policy also provides for the payment of a weekly premium in the sum of 25 cents, payable on or before each Wednesday during the continuance of the policy.

By the terms of the policy all premiums are payable at the home office of the company in Boston, but may be paid to any of its authorized agents, subject to the conditions of the policy. Should such agent fail to call for any premium when due, the insured is to make immediate payments of the premiums either to the district office or to the home office, and failure of the agent to collect premiums will make it necessary for the insured to pay the premiums when due at the office of the company, as provided for in the policy.

The policy also provides that no payment of premiums shall be valid unless entered in the premium receipt book at the time of payment, by the agent, or other representative of the company authorized to receive it.

The weekly premiums required were due on the 2-Oth day of each month during the life of the policy, and upon failure to pay within the period of grace, which is four weeks, the liability of the company under the policy ceases, and if the insured wishes to reinstate the policy, it is provided that any time within one year from default in payment of premiums, if the cash surrender value has not been paid or the extension term has not expired, the policy may be reinstated upon production of evidence of insurability satisfactory to the company and approved at its home office and the payment of past due premiums.

The weekly premium due Wednesday, February 20, 1935, was not paid. The plaintiff on or about 3 p. m. Friday, March 22,1935, forwarded a $2 money order to the district office of the defendant company to pay the past due premiums on the policy in question, and the past due premiums on two other policies, which were on the life of Eleanor Benatti, a sister of Dolores Benatti.

Dolores died on March 24,1935. On March 25,1935, Robert Theriault, the agent of the defendant, and James A. Simmons, assistant district manager of the defendant, went to the home of Mr. and Mrs. Benatti and at that time Mr. Simmons gave them company death claims to be filled out and signed. Mr. Simmons told them that the insurance was “out of benefit” but that the plaintiff could submit his claim to the company. No premium was paid to or accepted by agent Theriault or the assistant manager Simmons on March 25, 1935. Thereafter, on March 29, 1935, Thomas J. McCarthy, district manager of the defendant company, wrote the following letter to the plaintiff:

“We have been in receipt of your remittance in the amount of $2.00 for payment of premiums due on policy No. 23428732 on the life of Dolores Benatti and Nos. 23489983-23860345 on the life of Eleanor Benatti.
“This is to advise you that this insurance was out of benefit at the time your remittance was forwarded. Before we can proceed with the reinstatement of policies on the life of Eleanor Benatti, it will be hecessary that the enclosed certificates of insurability be signed by you and returned to us at which time we will present them to our Home Office for approval of reinstatement.
“We have not enclosed reinstatement application on policy No. 23428732 on the life of Dolores Benatti as we understand that she is deceased and, therefore, the reinstatement of her policy would not be approved.
“Tour money order, as well as your book, is returned herewith, and if you care to reinstate the two policies on the life of Eleanor, return the completed reinstatement forms to us after the signatures have been witnessed, also forwarding your book and money order and we shall present them to the Home Office for approval.
“(Signed) Thomas J. McCarthy.”

On March 30, 1935, Robert Theriault and James A. Simmons again went to Mr. and Mrs. Benatti’s home. On this date reinstatement applications were signed by Mrs. Benatti to reinstate the two policies on the life of Eleanor Benatti. At the same time, Agent Theriault accepted a $2 money order as payment of back premiums on the two policies which were to be reinstated pending approval of the application for reinstatement by the home office of the defendant. He marked up payments on the premium receipt book for two policies on the life of Eleanor Benatti, showing payment of premiums to April 10, 1935. From the receipt book in which the payments were noted, it appears that payment of premiums were made to the defendant’s collection agent frequently after the due date of payment, but within the period of grace provided for in the policy, with the exception of one payment made on August 29, 1934, which, it is contended by the plaintiff, was 29 days after a previous payment made on August 1,1934. Evidence was offered by the plaintiff that on the occasion of the payment of August 29, 1934, it was called to the attention of the defendant’s collecting agent that payment was being made after the period of grace had expired and the collection agent assured the plaintiff’s wife that the matter of a day or two tardiness in payment of premium would not make any difference.

It also appears from the evidence that in the course of a conversation with the plaintiff’s wife, the agent assured her that the company would not take advantage of any tardiness in payment of premiums, and during this conversation the defendant’s collection agent was informed that the plaintiff was moving to a new address and to notify the office of the company of this address and to make arrangements for future collection of premiums at the new address.

On Monday, March 25, 1935, the office of the defendant company was notified of the death of Dolores Benatti and Mr. McCarthy, the branch manager of the' defendant company notified his informant, Anthony Allen, that the money order for $2 had been received and that the receipt book would be returned containing the proper receipt for payment, and that other representatives of the company would call at the home of the plaintiff with settlement papers that afternoon.

Agents of the defendant company called at the home of the plaintiff and turned over proofs of death, which were prepared and executed by the plaintiff and delivered to the defendant. Subsequent to that time, on March 30, 1935, the money order for payment of the premium which had been previously sent to the company on the 22nd day of March, 1935, was returned to the plaintiff, with a letter advising him that the policy was “out of benefit,” which letter we have referred to and set out in this opinion.

The evidence of the witnesses, as well as the exhibits, was before the court, and the jury after considering all the evidence returned a verdict for the amount of $600, the subject of this appeal.

The defendant contends that the plaintiff is not entitled to recover under a life insurance policy which is not in force on the date of the death of the insured and where the premiums have not been paid and where there was no proof of waiver of premium payments, and points to the fact that the premium due February 20, 1935, was not paid within the four-week grace period provided by the terms of the policy, and that because of default in payment, the policy was not in force on March 24,1935, the date of death of the insured.

The plaintiff answers this contention of the defendant by suggesting that forfeiture for nonpayment of premium is waived where the insurer’s collecting agent by course of conduct induced the policyholder to believe that it was not necessary to pay the instalments of premium within the period provided for their payment and that payment could be made after expiration of the period without incurring a forfeiture, and cites as authority the case of Baxter v. Metropolitan Life Ins. Co., 318 Ill. 369, wherein the court announced a rule which is a guide in cases of this nature. The court said:

“Waiver by an insurer results when it by an act, statement or course of conduct toward the assured recognizes the policy as existing though the time for payment of the premium has expired. Forfeiture of life insurance policies is not favored, and unless the circumstances show a clear intention to claim a forfeiture for non-payment of the premium such forfeiture will not be enforced. If the conduct of the insurer is such as to induce the assured to believe that a forfeiture will not be insisted upon, the insurer will be held to be estopped from taking advantage of such forfeiture.”

The plaintiff points to the evidence in the instant case to bring his claim of waiver within the rule of the Supreme Court. From the evidence it is apparent that payments were received by the defendant after the due date but within the grace period, with the exception of when the payment was made on August 29,1934, which the plaintiff contends was 29 days after the due date. When this payment was made plaintiff’s wife called the collecting agent’s attention to the fact that the payment was late, and the agent assured the wife of the plaintiff that the matter of a day or two tardiness in payment would not make any difference. Of course, the rule is that an agent of an insurance company is not empowered to change the provisions of the contract. This must be conceded, but a company operating through agents can be bound by the acts of its agents in waiving provisions providing for payment of premium. In support of this rule no citation of authorities of courts of last resort is necessary.

The defendant stresses the fact that the letter of the company advised the plaintiff that the policy was out of benefit for failure to pay the premium. This letter was received by the plaintiff on March 30, 1935. In the meantime between the day of payment and the receipt of the letter, the agents of the company called and had proofs of death executed by the plaintiff. This circumstance is worthy of note in that the company at that time acted upon the theory that the policy was still in force and supports the evidence of the witness Allen who testified that McCarthy, the agent of the defendant company, stated to him that the $2 money premium had been received and the receipt book would be returned containing the proper receipt for payment, and that representatives would call at the home of the plaintiff with the settlement papers. Then, again, when the letter was received on March 30, 1935, the agents of the company called at the home of the plaintiff, and during a conversation between the parties present, plaintiff’s wife Helen Benatti, inquired about the check for the death claim.

While part of the evidence upon some of the questions of fact is in dispute, there is sufficient to support the verdict of the jury and the judgment entered by the court.

An important feature of this case is that the four-week period of grace after failure to pay premiums is in violation of the statute of this State. Ch. 73,If 375, § 1, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 66.371, provides:

“That from and after January 1, 1908, no policy of life insurance shall be issued or delivered in this State or be issued by a life insurance company organized under the laws of this State, unless the same shall provide the following:
“Days of Grace. (2) For a grace of one month for the payment of every premium after the first year which may be subject to an interest charge, during which month the insurance shall continue in force: Provided, that if the insured shall die within the month of grace the unpaid premium for the current policy year may be deducted in any settlement under the policy.”

The defendant admits that the insurance policy is controlled by the statute above quoted, but contends that according to plaintiff’s testimony he mailed a money order for $2 to the defendant company on the afternoon of March 22, 1935, which was 30 days after the due date of the premium. In the ordinary course of mail, the letter containing the money order would be received by the defendant company the next day, which would be 31 days after February 20. The answer to this contention is that the statute provides for a month of grace, not of days, so that when the payment became due on February 20, this month had but eight days remaining, and March being a month of 31 days, the plaintiff was entitled to compute his payment on the basis that there were 31 days in this month: In other words, plaintiff had a right to take into consideration there were 31 days in this month and that the courts do not consider fractions of time under the laws of this State; that he would be entitled to 23 days in March in making payment of the premium, and defendant having admitted receipt thereof, it was made on time and there was no default.

The defendant complains of the giving of the following instruction by the court:

“You are instructed that although a policy in this case provided that premiums were payable weekly in advance and allowed the policyholder a period of grace of four weeks within which to pay premiums after the date each premium was due, and further provided that upon the failure of the insured to pay the premium within the period of grace, the company’s liability shall cease, that such provisions were optional on the part of the defendant company and could be waived by it if it chose to do so.”

Attention is called to the statute of the State of Illinois, ch. 73, par. 375, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 66.371, by which it is provided that insurance companies doing business in this State shall include in the provisions of the policy the 30-day period of grace. This instruction was not of itself harmful. While the provision of the statute in question must be complied with, still a further period of time may be granted by the company in terms such as will not violate the statute, but, on the other hand, the forfeiture of a policy may be optional, that is to say, a breach may be waived by the insurance company. In support of this contention the defendant cites the case of Ely v. Prudential Ins. Co., 247 Ill. App. 345. After an examination of the opinion it does not appear to us that it militates against the theory of the instruction, for the court in its opinion said: “It is undeniable that a party may waive the advantage of a statute intended for his sole benefit, but there are grave reasons why a law enacted from public considerations should not be abrogated by mere private agreement. (Phelps v. Phelps, 72 Ill. 545.) It is said in Thompson v. Knickerbocker Life Ins. Co., 104 U. 8. 252, ‘A valid excuse for not paying promptly on the particular day, is a different thing from an excuse for not paying at all.’ ”

The defendant also charged the court with error in the refusal to give two other instructions. We have considered them in the light of defendant’s complaint, and are unable to agree that their refusal was erroneous.

For the reasons stated, the judgment of the court is affirmed.

Judgment affirmed.

Denis E. Sullivan, P. J., and Hall, J., concur.