text:
    In re Estate of George Cashman, Deceased.

      Wills — Construction — Rules — Life Estate — Remainder —- Limitation of — Sale of Lands — Election—Right of Widoiv to Have and Hold a Certain Sum in Cash.

    1. In the construction of a will the intention of the testator, if not inconsistent with the rules of law, governs; and his intention is to be ascertained from the whole will and all its parts taken together. Every clause and provision should he given effect, if possible, according to his intention.
    2. In the case presented,, the second clause of the will in question gave to the widow a life estate in a certain tract of land, with power of election in her vested to have said land sold by the executors, and to accept instead thereof $3.000 in money, to be accepted and held by her during her* natural life, with the remainder, “ or so much thereof as may remain unexpended,” if any, to the testator's children, the same “ to be accepted and held " and by her used and expended in her discretion for her own use and benefit.
    3. The words, “ or so much thereof as may remain unexpended,” in law and fact, import a power of disposition in the widow and create a limitation of the remainder after the termination of her life estate.
    [Opinion filed December 8, 1888.]

      Appeal from tlie County Court of Knox County; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. Williams, Lawrence & Bancroft, for appellant.
    The Supreme Court of this State has often held that a life estate may he created with power of disposition in the life tenant, and limit a remainder after the termination of the life estate. Kaufman v. Breckenridge, 117 Ill. 316; Markillie v. Ragland, 77 Ill. 98; Hampton v. United States Express Co., 107 Ill. 443, and numerous other cases.
    It will be sufficient if from the entire will any right of management and control can be gathered. Can such an inference properly be drawn from the will in question ? The testator leaves his widow a valuable eighty acres of land for life, and thinking that its sale might assist in selling the adjoining lands of the estate, he gives her the option of receiving, in case she sold the land, the sum of $3,000 in money, to be accepted and held by her, as provided in reference to real estate, during her natural life.
    The Supreme Court of this State have construed words not so strong as these, for the word “ unexpended ” did not occur in the case, hut instead simply the words, “whatever may remain.” We quote : “But the first part of the next clause seems to remove all doubt. He there declares it to he his will that whatever remains of his estate, real and personal, at the death of his wife, should descend to his heirs according to laiv Had he not intended that his wife should have power to sell his real estate, why speak of what should remain of it at her death? ” Markillie v. Ragland, 77 Ill. 102.
    So in this case. If the testator had not intended that his wife should’ have the power to expend the personal estate which he had directed she should accept and hold, why speak of what should remain unexpended at her death ?
    The testator doubtless contemplated that the benefit his real estate would receive from the sale of the land given to the widow, by her consent, would more than compensate for any impairment her expending any portion of the principal would entail.

      This is not an open question in this court. Tour Honors have, within the past year, passed upon the very words that occur in this will, and have held the construction for which we contend. Pritchard v. Walker, 22 Ill. App. 286.
    Mr. Frederick A. Willoughby, for appellees.
   Upton, J.

The sole contention upon this appeal is upon the construction of the second clause in the last will and testament of the late George Cashman, which will was duly admitted to probate in-Knox county, a copy of which clause is as follows:

“ Second. I give, devise and bequeath unto my beloved wife, Pebecca Cashman, the following described real estate, to wit: The south half (-¡-) of the southwest quarter (J) of section seven (7), in township nine (9), north of range two (2), east of the fourth (4th) principal meridian, situated in the county of Knox and State of Illinois, together with all hereditaments and appurtenances thereunto belonging or in any wise appertaining during her natural life; also one milch cow, to be selected by her, and all the household furniture, of every name and nature whatsoever, during her natural life; all of said property to her devised and bequeathed, to be received and accepted by her in lieu of dower and homestead: Provided, however, that she, my said wife, may elect to have the above described real estate sold and conveyed by my executors hereinafter named, in connection with my adjoining land or lands (if by them deemed for the best interests of my estate), and accept in lieu thereof the sum of three thousand (§3,000) dollars in money, to be accepted and held by her, as above provided, in reference to said real estate during her natural life, and that after her death all of the said property to her devised and bequeathed (or so much thereof as may remain unexpended), to be converted into money by my executors, and the net proceeds thereof to be divided equally between all my children and their descendants according to law, except the descendants of my son John Cashman, deceased, to wit, my grandsons George Cashman and John Cashman, who are hereinafter provided for by a specific allowance or legacy in full of all interest in my said estate.”

The land mentioned in and devised to Eebecca Cashman by the will, was, by her election, sold by the executors of the estate as authorized by the will. Mrs. Cashman joined in the conveyance and accepted and received and now holds the sum of §3,000 in lieu thereof. The money was paid to her as devisee under the will by-her co-executor, J. L. Cash-man.

In the executor’s report, presented to the Probate Court of Knox county for allowance, this item or fund of §3,000, so paid the widow, Mrs. Cashman, as devisee, was charged to the estate and a corresponding credit given to the executors therefor.

Objections were filed in the Probate Court by a portion of the heirs of said estate to the allou anee of that charge or item, with others, in the report. The Probate Court overruled the objections and allowed such item or charge of §3,000, so paid, to the credit of the executor, and accepted the report.

From which finding the matter was appealed to the Circuit Court of Knox county, which, upon hearing, entered an order or decree “ approving and affirming all of the said report of the executors, except such part as relates to the sum of §3,000, claimed by the executor to have been paid Eebecca Cashman, widow of said deceased, in lieu of the eighty acres of land, and as to such sum of $3,000 the court finds that the said Eebecca Cashman has only a life estate therein and thereto under the will of her husband, the said George Cashman, deceased, and as such was not entitled to have, hold, use or impair the said principal sum of $3,000, but only to the interest, use and profit thereof during her natural life; that at her death the whole of the said $3,000 belonged to the estate of the said George Cashman, deceased, aud that the executor should account to the estate for that sum,” etc., and in that particular reversed the judgment and order of the County Court sitting in probate.

From which order, finding and judgment of the Circuit Court the matter was, by the executor, appealed to this court.,

The rule of law, in this State at least, is well settled that by a last will and testament one may create a life estate, with power to sell and convey the fee, and limit the remainder after the termination of such life estate. Hawkins v. U. S. Ex. Co., 107 Ill. 443; Welsh v. Belleville Savings Bk., 94 Ill. 202; Kaufman v. Breckenridge, 117 Ill. 305, and cases cited.

It is a principóle of general application that the intention of the testator, if not inconsistent with the rules of law, must govern in the constrúction of a will. This intention is to be ascertained from the whole instrument, with all its parts and clauses taken together. Every clause and provision, if possible, should have effect given it according to the intent of the maker. A later clause, when repugnant to a former provision, is to be construed as intending to modify or abrogate the former clause.

It is contended by the appellant that, by the provisions of the second clause of the will in question, Bebecca Cashman took a life estate in the §3,000 mentioned therein, with the right to appropriate to her own use, and expend so much thereof, both principal and interest, as she thought proper, and if any part thereof should be left at her death, such part so remaining should be divided among the heirs of the estate, as provided by the will.

The apptellee insists that Bebecca Cashman took only a life estate in the eighty acres of land, or the §3,000 which, by her election, was substituted in lieu thereof, without the power of use or disposition of the same, or any part thereof.

The general rule is, that, where a power of disposal accompanies a bequest or devise of real estate, the power of disposition is only co-extonsive with the estate given. If the estate be for life only, the power of disposition is limited to such an estate as the tenant for life could convey, and since his estate was for life only, he could convey no greater estate than he possessed, unless there are other words clearly indicating that a larger power was Intended. Kennedy v. Kennedy, 105 Ill. 350; Henderson v. Blacker, 104 Ill. 227; Boyd v. Strahan, 36 Ill. 355, and cases cited.

The rule is also clearly stated in Kennedy v. Kennedy, supra, that in cases of the character above referred to, the main inquiry should be the intention of the testator, and if that can be satisfactorily ascertained from the will, interpreted in the light of the surrounding circumstances, that intention should prevail over any artificial or technical rule of construction.

It is also clear as a principle of law, “ ex necessitate ret that a life estate in personal property gives the donee the right to consume such articles as can not be enjoyed without consumption, and to wear out by use, such as can not he used without wearing out.

Applying the rule, on principles hereinbefore stated, to the case at bar, it must be apparent that the testator contemplated that his wife should take a life estate in the eighty acres of land in the will described, with power of disposition at her election, and that the specific legatees named in the will at the death of his wife, should take the remainder, limited to the right of the wife in her life to use or expend for her own benefit, such portion thereof as she might choose to appropriate. In no other view can full effect be given, in our judgment, to each clause of the will.

The construction claimed by the appellee would render wholly nugatory the clause, that after the death of his wife the property so devised and bequeathed to her, Cior so much thereof as may remain then unexpendedetc.

It will scarcely he claimed that, this clause is meaningless, or is ambiguous, for the reason that the testator has in express terms given the wife a life estate only, and that by giving effect to this clause, the estate would be enlarged to a fee, by the granting of a power of disposition to the wife of the whole devise asv claimed by counsel for the appellee.

At best the above rule would be a technical rule of construction and would defeat the manifest intention of the testator in the case at bar. This rule, if indeed it be of authority in certain cases, can not apply to the case at bar as we have shown.

We need not, however, further discuss the point here involved. It is settled, as we regard it, by the determination of the judicial tribunals in this State, at least, that the words as used in the second' clause of the will here in question, “or what remains unexpended” or equivalent words, do, in law and fact, import a power of disposition in the person to whom such devise or bequest is made and create a limitation of the remainder after the termination of such life estate.

In other words, as applied to the case at bar, the second clause in • the will and the language used therein, legally construed, pass to his wife, Eebecca Cashman, the right to have, receive and expend for her own use and benefit the $3,000, and the income therefrom, as she may see fit, during her natural life, and that part or portion thereof which remains at her death (if anything) unexpended, is to be divided among the legatees in the will named. Pritchard v. Walker, 22 Ill. App. 286; Pritchard v. Walker, Affid. 121 Ill. 221; Hamlin v. U. S. Ex. Co., 107 Ill. 443; Kaufman v. Breckenridge, 117 Ill. 305.

There is another view bearing upon this question, perhaps not unworthy of notice. The language contained in the clause under present consideration in express words, gives to his widow the right to have and to hold the $3,000 here in controversy. The language is, referring to this $3,000, so “ to be accepted and held by her as above provided in reference to said real estate during her natural life, and that after her death all of said property to her devised and bequeathed, or so much thereof as shall remain unexpended, to be converted into money, * * * and the net proceeds thereof to be divided,” etc.

Clearly, the language is express that his wife was to accept and hold the $3,000 during her natural life, with the right and power to manage and control the same, certainly to the same extent as she could have done with the land before it was converted into money by her election. It would not be claimed that as to the land, she had not the right to the possession and control thereof during her natural life.

Did the sale of the land and the substitution of the money for it, abridge the rights of the wife therein or thereto, to hold and control the same? It is clear she could not have the same power, right and control of the §3,000, if the entire possession thereof was denied her, as if she was possessed thereof, even if the use of it was her only interest therein.

It avails nothing in the argument to say the devisee in this case is a woman, and therefore to be presumed, in some degree, incapacitated to make use of, or safely invest the money to her interest, or the protection of the fund. It is the determination and application of legal principles in the construction of language used, in cases of the character before us, rather than an inquiry as to fitness of the beneficiary to be intrusted with the fund; that we have to determine in this case. We are satisfied that from a just legal construction of the will here in question George Cashman, deceased, gave to his wife eighty acres of land for her natural life in lieu of dower and homestead in his estate, with the power of election in her vested, to have said land sold by the (“ his”) executors, and to accept instead thereof §3,000 in money, which was to be by her accepted and held, as provided in reference to said land, during her natural life, and that after her death all the said property devised and bequeathed to her, which remained unused or unexpended by her in her lifetime, to be converted into money by his executors, and the proceeds divided among his children as in his will stated. In our judgment the case at bar is fully within the principles announced in the case of Pritchard v. Walker, supra.

That the words contained in the second clause of said will “ or so much as remains unexpended after her death ” clearly indicate an intention on the part of the testator that his wife, ¡Rebecca Cashman, might use and expend the whole or any part of the principal as well as the interest, or benefit derived therefrom, for her own use and benefit, if she should choose so to do, without in any way or manner being compelled to account to the said estate therefor in whole or in part, seems to us clear.

That, for that purpose, the said Rebecca Cashman was and is entitled under said will to the actual possession and control of the $3,000 here in controversy, and to the same extent as to the other personal estate to her bequeathed, and that the co-executor, J. S. Cashman, rightfully paid the same to her, and should be allowed therefor, as charged in his account filed in the said County Court, sitting in probate in the matter of said estate.

The judgment of- the Circuit Court is therefore reversed in that particular and affirmed as to residue thereof, and the cause is remanded for further proceedings therein, not inconsistent with the judgment herein expressed.

Reversed in part and remanded.'


source: Caselaw Access Project

author: Upton, J.

license: Public Domain

text:
    John B. Colton, Executor, v. Field & Leiter et al.

      Administration — Final Account — ■Insolvent Estate — Release by Part of Creditors of Claims against Estate — Compensation of Executor — Rights of Remaining Creditors.

    1. The rule that a trustee can make no profit out o£ his office, applies to all who hold fiduciary relations, and includes executors and administrators.
    2. Where the executor of an insolvent estate is released from the payment of further dividends by part of the creditors thereof, the remaining creditors are entitled to a pro rata distribution of any fund thereafter arising.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit' Court of Knox County; the Hon-John J. Glenn, Judge, presiding.
    Messrs. Williams, Lawrence & Bancroft, for appellants.
    The rule inhibiting a trustee to purchase from or sell to himself as such, is for the protection of the cestui que trust
      It concerns no one else. The cestxñ que trust, being sui juris and otherwise competent to contract, may request such dealing, or upon notice and full knowledge either ratify and confirm or disaffirm it at his pleasure. 4th Kent (11th Ed.), Sec. 138, and note; Perry on Trusts (2d Ed.), Sec. 198; Thorp v. McCullum, 1 Gilm. 627; Follansbee v. Kilbreth, 17 Ill. 522.
    The privilege is his alone, and for his sole benefit and advantage. Under no circumstances can it inure to the advantage of another save by the will and wish of the cestui que trust affirmatively expressed. Perry on Trusts (2d Ed.), Secs. 198, 428.
    In the case at bar, the action of the executor was taken at the request of the great majority in number and amount of the creditors of an estate known to be insolvent, to the end that they might thereby realize something more than could be hoped for under statutory and usual management. As the administration progressed they were fully advised as to what the executor was doing. At its conclusion a full, accurate and detailed account of his methods, doings and the result was spread out before them for examination, criticism, approval or disapproval. They heartily approved the result attained, emphasizing such approval by releasing the executor from further liability as to their respective claims allowed against the estate. This they might lawfully do, since such interests were personal to them, each separate and distinct from every other In, and to them, and to the dividends collectible thereon, no other creditor had any right, title or interest whatever. As to them, each for himself might rightfully do what he would with his own. So heartily content, so thoroughly satisfied were they with the outcome that they, of their own motion, under their hands and seals, stated such approval and satisfaction that the executor should retain the perquisites allowed him by the County Court and any incidental benefits, if any, derived from furnishing the goods which his statement of account showed he had furnished.
    That this was their deliberate intent upon full knowledge of the facts is clearly evident. But since a man may rightfully do what he will with his own their right so to do is clear. There was nothing in the relation of trustee and cestui que trust to prevent their so expressing their approval of his conduct in the premises. Bispham’s Equity (2d Ed.), Sec. 237, p. 398; Perry on Trusts (2d Ed.), Sec. 428, and note 1; Harwood v. Robinson, 14 Ill. App. 565.
    Messrs. Frederick A. Willoughby and M. W. Bliss, for appellees.
    Mr. Colton claims, in the language of the stipulation, that after paying appellees their pro rata share, he “is entitled to the balance of said amount as against the creditors who have filed said receipts, or against the estate.” By the payment of this trifling amount, about §500, and retaining the balance, amounting to about §3,500, he expects to comply with the decision of the Appellate Court, that the executor could not be allowed to make a profit in his dealing as executor with himself as a private individual.
    This money is part of the assets of the estate, and as such belongs to the creditors.
    In 1878 certain creditors, by a receipt in full, discharged the executor from further liability on account of their claims against the estate.
    The release or receipt of these creditors could not inure to the personal benefit of the executor, and as such it was a release to the estate.
    This is evident from the very language of the receipt. They “release the said John B. Colton from further liability as such executor, on account of our respective claims against said estate.” ■
    Mo assignment of their claims or of the balance of such ° claims is here made directly or inferentially. Colton has made unusual exertions and incurred risk of extra trouble and personal loss by reason of the illegal proceedings, at their request, in administering the estate, and now they approve his course and release him as executor from further liability to them. This is no sale or assignment of their claims to Col-ton; it is in totidem verbis a release to the executor, that is, to the estate.

      This amount of $3,879.34, which, under the decision of the Appellate Court, the executor must account for to the estate is, of course, assets of the estate, for the payment of the indebtedness of the estate. Upon it, as upon all other assets, the creditors have a claim for the satisfaction of the indebtedness of the estate to them. The receipt by a portion of these creditors does not put the executor in the position of a creditor pro tanto of the estate. Such was not the intention of the creditors, nor the legal effect of their receipt. They having receipted to the estate, and being still content with such action, the money in question must be applied to the payment of such claims as remain unsatisfied and undischarged, viz., the claims of appellees and the other creditors who have not receipted to the estate.
    If, however, the creditors had intended and attempted to assign their claims to Colton, such assignment would not inure to his benefit, but to that of the estate.
    “ ¡Nor, if an executor compound debts due from the testator, or buy them in for less than their amount, shall he be personally entitled to the benefit of the composition; but other creditors, or the legatees, or the party entitled to the surplus, shall have the advantage of it.” Toller’s Law of Executors (4th Am. Ed.), p. 481.
    All savings and profits made by an executor out of the funds of the estate, or in the payment of claims at a discount, or in depreciated paper, belong to the estate, and become assets for the payment of debts and distribution. Wingate v. Pool, 25 Ill. 118.
    In the above cited case the Supreme Court affirm the well known doctrine that all profits made by an administrator belong to the estate, and apply it to the case where an administrator paid off certain notes to a bank with paper of the same bank which he had bought on the market at a discount with his own funds, and compel him to account to the estate for such profit. He did not, indeed, claim to be the “ equitable assignee ” of these notes after he had taken them up, and insist that they should be kept on foot for his benefit, as does the executor in the case at bar, but such a claim, if made, would not have been sustained by the court, for such administrator could not be allowed to indirectly make a profit out of the estate.
   Upton, J.

On the eleventh day of December, 1870, appellant filed in the County Court of Knox county his final report and account as executor of the estate of one E. E. Thomas» deceased, and asked of that court the allowance and approval thereof and that he be discharged as such executor. To this application, appellees, who are creditors of the estate, objected, and filed in that court, severally, specific objections thereto, charging the executor with neglect and mismanagement in many particulars, to their injury.

A hearing was had on this application in the County Court and the objections were not sustained; the amount as filed was allowed and the executor was discharged, from which appellees appealed to the Circuit Court, wherein the order of the County Court was affirmed, and the case was then further appealed to this court, where a hearing was had at the June term. 1880, and the judgment of the Circuit Court was reversed and the cause remanded with directions, -which will be found in Yol. 7, Appellate Court Reports, at page 379 thereof.

Upon this remand, the executor restated and refiled his final account in said County Court as follows:

“ Statement of account under finding of court.

A hearing was had upon this, report and amount as restated, and as to the distribution of the balance so reported in the hands of the executor, the County Court made an order in substance as follows:

“This cause coming on to be heard, being remanded from Circuit Court for restatement of account, and for an order of distribution, the executor having filed his final report showing balance on hand of §3,879.34. * * * Ordered that the executor first pay Field, Leiter & Co. and H. W. King & Co., each the sum of $300 for' their expenses in and about the resisting of the discharge herein, and that the balance be distributed pro rata among all creditors of said estate who have proved their claims against the estate in proper time.”

From which order both appellant and appellees prayed an appeal to the Circuit Court of Knox county. The cause was heard in the Circuit Court and upon that hearing a receipt and release by a large number of the creditors of said estate to the appellant as executor was put in evidence, which in effect was as follows:

“In the matter of the estate of E. F. Thomas, deceased, late of Galesburg, Illinois.

“At the outset of the executorship of John B. Colton, executor of said estate, he was requested by E. S. Jaffray & Co., of ¡New York, and other creditors of said estate, representing three-fourths in number and amount of the entire liabilities against said estate, to obtain from the County Court of Knox county, Illinois, an order permitting him to continue the business of said E. F. Thomas for such reasonable time as he deemed necessary for the advantageous sale of the stock of goods on hand belonging to said estate.

“ Such order was made by said court, the necessary supplies were purchased by said Colton, executor, under said order, and the estate fully administered upon thereunder by him in accordance with the wish of said creditors, and the entire net proceeds of said estate distributed to the creditors, amounting to forty-six and five-eighths per cent, of their respective claims. And said executor having filed in said County Court his final account current accompanied with the proper vouchers, and the judge of said court having examined and approved of the same, he entered a final order declaring the estate insolvent, and discharging said executor from further liability thereunder. How, in consideration thereof, and for other good and valuable considerations by us received through the unusual exertions used by the said Colton, executor, and personal risk, extra trouble and personal loss by reason of acting under and carrying out the order of said court in the interest of said estate, we do each and every of us respectively approve the course of said Colton as aforesaid in the management of the said estate and release the said John B. Colton from further liability as such executor, on account of our respective claims against said estate of E. F. Thomas, deceased. Witness our hands and seals set opposite our respective claims.”

Which was signed, with seals attached, by some thirty in number of the creditors of the estate, and representing in the aggregate about $45,000 of claims.

It was stipulated in the court below that appellees were unpaid creditors of said estate; that the aggregate amount of their original claims was about $5,000, upon which had been paid, in due course of administration, about forty^six and five-eighths per cent., and for which unpaid balance no release or discharge had been given.

At this hearing the executor sought to obtain an order accepting and approving his account and report as restated, and his discharge as such executor, upon the payment to the appellees and other unreleased creditors (the appellees were the only creditors objecting to such distribution and discharge) of their pro rata share of this balance of $3,879.34, then remainingin the hands of the appellant as such executor.

The appellees contended that as all the other creditors of said estate, or substantially all, had released their claims to any further share therein, they were legally entitled to the entire fund so remaining in the hands of the executor in satisfaction of the full unpaid balance of their claims, as well as those of other than released creditors of the estate, if any, if sufficient for that purpose, and if not, to share pro rata with such other unreleased creditors.

That the release and discharge of the executor prevented all further claim to, or right of participation in the fund or balanee found remaining in the hands of the appellant as executor, by the releasing creditors, but did not divert or charge it as assets of the estate for distribution among the existing creditors of the estate, nor transfer the same in whole or in part to appellant in his own right. The Circuit Court on hearing entered the following order or decree in substance:

“ And now this case coming on for hearing, and the court having heard the evidence in the cause and the argument of counsel for the respective parties hereto, and being fully advised in the premises, doth order, adjudge and decree that the fund or money heretofore accounted for by the executor herein in his report or account current made by order of this court to the County Court of this county, be paid to the objectors, Field, Leiter & Co., Henry W. King & Co., and all other creditors whose claims have been previously not released or satisfied, in satisfaction of their claims against the estate of E. F. Thomas, deceased, if the same shall be sufficient to satisfy said claims, and if not sufficient, then the same shall be applied fro rata on said claims.
“It is further ordered that the costs in this case, including all costs that have been incurred in this, as well as in said County Court, upon the application of said John B. Colton, executor as aforesaid, shall be paid by the said John B. Colton, but not out of funds belonging to the estate.”

From which the executor appeals to this court and assigns for error:

1st. The entry of the decree of distribution.

2d. In not limiting the amount of distribution to be paid appellees and other unreleased creditors to the fro rata share of each in the fund in the executor’s hands, all claims allowed against said estate being considered.

3d. For other errors apparent in the record.

The question presented by this record is, to whom does this fund or balance in the hands of the executor of $3,879.34 belong? This determined disposes of the whole case and includes all errors assigned substantially.

The balance now in the hands of the appellant executor was produced in restating the final account of the executor in con-fortuity with the judgment of this court, wherein we held the executor was not entitled to retain the various items which, in the aggregate, make such balance. These items were not allowed the executor for the reasons stated in the opinion of this court before cited.

It was the products of claimed profits, to which appellant was not entitled, of $2,467.06, on which interest was computed from December 23, 1876, to July 1, 1886, in the sum of §1,412.28, aggregating this balance of §3,879.34.

Manifestly this is assets of said estate, and belonged to its creditors for the satisfaction of legal claims against it.

Who are its creditors? Hot the executor; he is entitled to compensation only as provided bylaw which has been fully paid. Hot by virtue of the release under seal to the executor by the relinquishing creditors, for that does not purport to be an assignment (if, indeed, that could in this case be availing) by such creditors to the executor, of the further distributive share which they might have received, but for such release.

The most that could be said would be that this fund, or that portion of it claimed by the executor here, did, in fact, arise from the savings and profits made by the executor out of the funds of the estate or in the payment of claims at a discount, and, as such, become assets of the estate. Wingate, Admr.. v. Poole, 25 Ill. 118.

But it is said the relinquishing creditors intended the furthei distributive share to which they might be severally thereafter entitled should be held by the executor as his own, and that such release be held and treated as an equitable assignment to liim of such jpro rata share as compensation for his extra care and attention to the duties of said trust and the enhanced benefits to the creditors of said estate.

That the entire assets of this estate in the hands of appellant is a trust fund of which he was, and is, a trustee, can not admit of doubt. It is the law, founded on the plainest princi- ■ pies of common sense and public justice, that a trustee can make no profit out of his office, and the reason on which this principle rests is that a trustee shall be placed in no position where his interests may be opposed to his duty.

The rule that a trustee can have no allowance or compensation for his time and trouble in the execution of his trust, is the well settled doctrine of equity, and this rule applies, not only to trustees strictly so called, but to all who hold fiduciary relations, as executors, administrators, etc.

It avails nothing that the service, or the result of honest effort of such trustee, were productive of great benefit to the trust estate or promotive of great pecuniary advantage to the creditors thereof. As such trustee, his duty was, and is, to protect the trust estate and enhance its value and productions by all honest endeavors, and to dispose of it to the best possible advantage, not for his own gain or hope of reward, but from simple duty. That he may the more faithfulty do this, the law seeks to shield him from temptation by an inflexible rule which will not permit him to palter with his own conscience and absolutely forbids him from occupying two positions inconsistent with each other — self-interest and official duty.

Regarding, as we do, the principle of law stated applicable to the case at bar, we can not yield our assent to the rule as claimed by appellant, even upon grounds of public policy alone.

All other creditors save appellees, so far as shown by this record, have executed and delivered under seal, to the trustee of this estate, a full and perfect acquittance and release ot all and each of their claims upon the said estate, or to further distribution from the assets thereof, and such release and acquittance inures to the use and benefit of the said estate.

There being no other creditors of the estate, appellees are entitled to have satisfaction of their several claims to the full amount thereof, from the said balance now in the hands of the executor, and the judgment of the Circuit- Court in that particular is affirmed.

The judgment of the Circuit Court as to the payment of costs by the appellant, John B. Colton, individually, is reversed, and the cause remanded to the Circuit Court with directions that it enter an order that the costs in this case including all costs that have accrued in the Appellate Court, as well as in Circuit and County Courts, upon the application of John B. Colton, executor, as aforesaid, be paid by John B. Colton as executor, out of the assets of the estate in his hands, in the due course of administration, and in all other matters the judgment of the Circuit Court is affirmed.


author: C. B. Smith, J.

text:
    Chicago & Alton Railroad Co. v. Dennis Glenney.

      Railroads — Ditch—Damages for Flooding Plaintiff's Lands — Former Adjudication — Limitations—Want of Plea — Stipulation.
    1. An action lies against a railroad company for damages where, by making new and unnatural channels, it has thrown surface or other water upon the plaintiff’s lands.
    2. In the case presented, the defendant is concluded by a former adjudication.
    3. The defense of the statute of limitations can only be interposed by plea. A stipulation limiting the plaintiff’s claim for damages within five years is not equivalent to a plea of the statute of limitations, nor does it amount to a waiver thereof.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Will County; the Hon. George W. Stipp, Judge, presiding.
    Mr. William Brown, for appellant.
    The appellant was the owner of a strip of land one hundred feet wide from Braidwood to Kilgore slough. It made use of it for a lawful purpose, i. e., the construction and operation of a railroad. The construction and operation of the road is, in a legal sense, a unit, which includes the doing of all legal acts necessary to the accomplishment of the end. The cutting of ridges, the filling of low places, and the ditching along the road bed, as well as the laying of rails and running of trains, are all lawful acts of enjoyment of properties and franchises, and it is contended that so long as the railroad continued to use its property in a lawful manner, no injury which therefrom results to another is an actionable injury.
    It is legally confessed, since there is no averment to the contrary, that all of the acts and doings of defendant were necessary to the exercise of its franchises, and that its work was skillfully performed. These cases are common in the courts of the various States, and we beg the consideration of some of them. Shane v. Kansas, etc., R. R., 71 Mo. 237; Abbott v. Kansas City, etc., R. R., 83 Mo. 271; Jones v. St. Louis, Iron Mt., etc., R. R. Co., 94 Mo. 151; Moss v. St. L. R. R. Co., 85 Mo. 896 ; Gannon v. Hargadon, 10 Allen, 106 ; Luther v. Winnissimmet Co., 9 Cush. 171; Flagg v. Worcester, 13 Gray, 601; Dickinson v. Worcester, 7 Allen, 19 ; Morrill v. Hurley, 120 Mass. 99; Hoyt v. The City of Hudson, 27 Wis. 656.
    Probably the clearest cases upon this question are to be found in Indiana, where it is held that the railroad company has the right to dig ditches and build a levee within the limits of its own land, and is not responsible for consequences if they overflow the lands of adjoining proprietors. Cairo & Vincennes R. R. Co. v. Stevens, 73 Ind. 278; Taylor v. Fickas, 64 Ind. 167; Schlicter v. Philipsy, 67 Ind. 201; Shelbyville, etc., v. Green, 99 Ind. 201; Weis v. City of Madison, 75 Ind. 241; Benthall v. Seifert, 77 Ind. 302; Cairo, etc., R. R. Co. v. Howry, 77 Ind. 364.
    In further support of the propositions here submitted we beg to refer to the following cases: Goodale v. Tuttle, 29 N. Y. 459; Waffle v. N. Y. C. R. Co., 58 Barb. 413; Imler v. Springfield, 55 Mo. 119; Dickenson v. Worcester, 7 Allen, 16; Parks v. Newburyport, 10 Gary, 28; Flagg v. Worcester, 13 Gray, 601; Bowlsby v. Speer, 31 N. J. Law, 351; Sowers v. Skiff, 15 La. Ann. 300; Martin v. Titt, 12 La. 503; Gibbs v. Williams et al., 25 Kan. 214; Ang. on Water Courses, p. 122, See. 108; Gould on the Law of Waters, Chap. 9, Secs. 263 to 272.

      If any injury whatever has resulted to the property of the appellee by the construction of this railroad, it is a mere incident to the lawful exercise of the rights and powers which have been vested in it, and no recovery can be had for it. Roberts v. Chicago, 26 Ill. 249; St. L., V. & T. R. Co. v. Haller, 82 Ill. 210; Murphy v. Chicago, 29 Ill. 279.
    There was a stipulation entered into between the parties that the plaintiff does not claim for injury prior to five years before the commencement of the action, which was in September, 1883. ■ The legal effect of this stipulation 'was, that the plaintiff should show a cause of action arising within five years. If, then, the cause of action was co-existent with the construction of the road and ditch, which are expressly averred to have been the cause of the wrong, the fact that they were continued does not show a cause arising within the period of the statute. They constitute one permanent legal structure; the things are but parts of the whole. C. & E. I. R. Co. v. McAuley, 121 Ill. 160; Powers v. City of Council Bluffs, 45 Iowa, 652; Troy v. Cheshire, 3 Foster, 83; C. & E. I. R. Co. v. Loeb, 118 Ill. 203.
    Messrs. R. M. Wing & Charles F. Goodspeed, for appellee.
    All the circuit judges of the ninth judicial circuit, the Appellate Court of the second district and the Supreme Court of the State, have held that these facts entitle the plaintiff to a judgment against this appellant. Chicago & Alton R. R. Co. v. Glenney, 19 Ill. App. 639; Chicago & Alton R. R. Co. v. Glenney, 118 Ill. 487; Chicago & Alton R. R. Co. v. Riley, 25 Ill. App. 569; Chicago & Alton R. R. Co. v. Connors, 25 Ill. App. 561.
    The foregoing decisions are in conformity with the previous decisions of the Supreme Court of the State on the same and kindred subjects. J. N. W. & S. E. R. R. Co. v. Cox, 91 Ill. 500; Nevins v. Peoria, 41 Ill. 502; Gillham v. Madison Co. R. R. Co., 49 Ill. 484; Hicks v. Silliman et al., 93 Ill. 257; Stoddard v. Filgur, 21 Ill. App. 563.
    The appellant claims “ that the ultimate controversy between the parties is whether the railroad company1 has the right to drain its right of way of surplus water by ditches into this (Kilgore) slough, acting skillfully, without negligence, and not leaving its own property.” That is not the contention in this case. Fairly stated the question is, can this railroad company select one of five distinct prairie sloughs, draws, depressions or watercourses, intercepted by its road, and by ditching through the banks of four of them, conduct their waters into the one selected. If it can legally ditch four into one, there is no legal reason perceived why it might not ditch four hundred into one.
   C. B. Smith, J.

This was an action on the case brought by appellee against appellant in the Will County Circuit Court. There are four counts in the declaration, none of them substantially different. The gist of the complaint is that appellant, by digging a ditch along the side of its track for some distance, brought a large volume of water into a slough running through appellee’s farm, which did not naturally run through the slough, and by thus increasing the volume of the water in the slough caused it to overflow appellee's land and thereby destroyed' his meadow. The second count differs from the other three by alleging that the defendant, by its ditch, cut certain ancient watercourses and diverted the natural flow of the water out of their course through its ditch into the slough and then over plaintiff’s farm.

The other counts only allege that by means of this ditch and the building of its road-bed the defendant gathered the surface waters from a large territory and brought it to the slough and thus on plaintiff’s land, and that said surface waters would not have naturally gone into the slough and over plaintiff’s land but for the ditch dug by defendant. To this declaration the defendant pleaded the general issue. There was also a stipulation in the case that the plaintiff would not claim for any damages accruing to him for more than five years preceding the commencement of the suit.

A trial resulted in a verdict for the plaintiff for §572.40. A motion fora new trial was overruled and appellant brings the record here by appeal for review and assigns the usual errors. We will consider only such as have been urged in the argument.

The facts as disclosed in this record are these: In 1886 the defendant was then the owner of a strip of land running through a level country lying between Braidwood and Wilmington, with numerous sloughs and slight elevations of the land crossing this strip of land, and on this strip defendant had before then built its road and was then operating it. In that year the defendant, in order to drain its right of way and protect its track, dug the ditch in controversy along'the line of road running in a northeasterly direction to Kilgore’s slough, and then emptied its ditch into that slough. Plaintiff’s land lay a few rods below where the railroad crossed the slough, and where the ditch emptied its waters into the slough. The general inclination of the land and flow of water was in a northeasterly direction. In digging the ditch along the right of way it crossed some three or four sloughs similar to Kilgore’s, smaller or larger, and also was cut through higher elevations along the track, so the water might from those sloughs follow the line of the track to Kilgore’s slough.

This ditch was all on the right of way of the defendant and was properly made and necessary to the protection of the railroad track and the right of way from the waters falling on the surface and in the sloughs. There is a dispute in the evidence whether these sloughs, or any of them, were natural watercourses within the legal meaning, or were mere surface waters, gathered in the lower levels of the land.

Counsel for appellant contend very earnestly and in a very able and elaborate argument that the facts disclosed in this record do not show any liability on the part of the defendant. In taking this position counsel deny, first, that the ditch in controversy diverted any natural watercourse, and thereby caused its waters to flow on plaintiff’s land. It contends that what plaintiff calls watercourses were, in fact, nothing but surface water seeking and lying on the lower levels of the undulating ground, without any of the elements of a natural watercourse, with banks, leaders and outlets, and second, that the water thus drained, being but surface water, the defendant having a right to free itself from it and in so doing throw it on the lower land, it is not liable, under the law, even if damage did result to the lower heritage. In support of this argument and position taken, counsel cite us to a great array of cases from other States which support him. But the law in this State seems to be settled the other way upon the facts as disclosed in this record.

While it is the law of this State that the owner of the dominant heritage may, for the purpose of good husbandry, and equally so for the purpose of good railroading, gather the surface water that falls or flows upon him in a body or in individual channels and let it flow upon the lower heritage so accumulated without making himself liable in damages, yet this right will not give him the right to make new and unnatural ways for even the surface water. This right to protect one’s self from the surface water falling on his own land gives him no right to erect dams and throw it back on another. Gillham v. The Madison County R. R. Co., 49 Ia. 84; T., W. & W. R. R. Co. v. Morrison, 71 Ill. 616. Ror to remove natural embankments or cut ditches through natural barriers, so as to increase the flow of surface water on the lower heritage, jvhen it would not have naturally passed over the surface in the direction in which it is taken by the ditch. Hicks v. Silliman, 93 Ill. 255.

These cases are sufficient to show the uniform holding of the Supreme Court of this State on the question involved in this record. The proof is clear that very much, water was diverted from its original direction into this ditch and carried to Kilgore’s slough, and thence over plaintiff’s land, that never could have reached there by surface flowage nor by any other mode except for the ditch along the side of the railroad that had been cut through ridges and embankments, thus bringing the case strictly within the rule laid down in the cases above cited.

But aside from all other considerations upon this branch of the case, we regard ourselves as concluded by the former adjudication in other cases growing out of the same state of facts involved in this record in which the defendant had been held liable. In the former cases the same point of non-liability was urged by the defendant and the point decided against it. In the former suit between the same parties the court held the defendant liable and affirmed the judgment of the Circuit Court. On appeal to the Supreme Court the judgment was reversed because the Circuit Court refused a proper instruction for the defendant, but we understand the ruling in that case to recognize the right of plaintiff to recover upon proper instructions, although it is not so stated in express words. C. & A. R. R. Co. v. Glenney, 19 Ill. App. 639; C. & A. R R Co. v. Glenney, 118 Ill. 487.

The defendant insists further that this claim was barred by the statute of limitations. Whether that be so or not, under a plea of the statute of limitations it is sufficient to say that no plea of that kind was interposed and without that plea this defense could not be made. Defendant insists that the stipulation made on the trial to the effect that plaintiff would not claim damages for any time' beyond five years next before the commencement of the suit, was equivalent to such a plea. We do not think this agreement is equivalent to the plea of limitations. It amounted to nothing more than an agreement of the plaintiff to limit his right for the wrongs committed within five years and simply said to the defendant, you need not defend against anything done prior to that time. Such an agreement has not a single element of a plea of the statute of limitations, and, even if it had, the agreement by implication gave the plaintiff the right to recover within five years if he could prove his case. So that, if it be by courtesy called a plea of the statute of limitations, it contains an agreement that destroys its effect, except in so far as it cut the plaintiff off from everything back of five years, and it is therefore wholly immaterial whether it be called a plea or an agreement; its effect is the same. This agreement or plea precluded the defendant from raising the question of limitations raised and presented in the argument.

Upon a careful examination of the instructions given, refused and modified, we find no substantial error. The jury seems to have been fully and correctly instructed.

Finding no substantial error in the record, the judgment is affirmed.

Judgment affirmed.


author: Lacey, P. J.

text:
    The Kankakee Coal Company et al. v. Crane Brothers Manufacturing Co.

      Mechanic's Lien — Petition to Enforce — Sufficiency of — Engine—Coal Lands — Contract—Time of Delivery — Bights of Mortgagees — Practice.
    1. Upon a petition to enforce a mechanic’s lien for a hoisting engine, it is held-. That the petition shows with sufficient accuracy where the engine was to be placed; that, as the time within which it was to be furnished was not fixed, the law implies that it should be within a reasonable time; and that there was no error in excluding evidence.
    2. When the contract, as set forth in the petition to enforce a mechanic's lien, is admitted to be correct, it is not error to refuse to allow the introduction in evidence of the original.
    3. Where it is admitted, in a stipulation entered into for the purpose o£ dispensing with proofs, that certain notes are overdue and unpaid, a failure to produce the same upon trial, no demand having been made for them, is no ground for reversal.
    4. One defendant can not assign for error matters which do not affect him, but only affect a co-defendant who is not complaining and has not appealed.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Kankakee County; the Hon. Alfred Sample, Judge, presiding.
    Mr. Stephen E. Moore, for appellants.
    It is not the mere furnishing the materials or doing the labor which creates the lien, but it is the contract of the parties and the furnishing of the materials under the contract, which have that effect. Kinney v. Sherman et al., 28 Ill. 520; Cook v. Vreeland, 21 Ill. 431; Sutherland v. Ryerson et al., 24 Ill. 520.
    I understand the law to he that the parties must contract with the agreement that the material must be used on a specific piece of land, and the proof must establish this contract.
    The mechanic’s lien law, being in derogation of the common law, and creating privileges and benefits not conferred on other creditors, must be strictly construed. Huntington v. Barton, 64 Ill. 502.
    The act will not be extended to cases unless they fall clearly within its provisions. Carney v. Tully, 74 Ill. 375; Canisius et al. v. Merrill, 65 Ill. 67; Witherell v. Ohlendorf, 61 Ill. 283.
    There will be no claim urged that this machine was made under an express contract. Ho time was agreed upon for the completion of the engine. It is not so averred in the petition, nor sustained by the evidence. Defendants in error could not have been sued for a failure of the contract set out in the petition, if not performed in five years. It was claimed in the Circuit Court that a reasonable time was to be inferred in which it was to be built; but this does not meet the requirements of the law. In Fish v. Stubbings, 65 Ill. 492, the contract was that the defendant employed the petitioner to do the work and furnish materials at a stipulated price, one-half to be paid on the completion of the work, and the balance on or before the first day of January next following. That the work was commenced, and progressed with the assent of the defendant, and completed the following February.
    The court says: “Here was a contract of employment, and the price and time of payment were fixed. It was clearly an express, as contradistinguished from an implied contract, but no time was agreed upon for the completion of the work. To entitle petitioner to a lien this was essential, and the law can not imply any time for completion under such circumstances. This omission is fatal to the petition.” Cook v. Vreeland, 21 Ill. 431; Peck v. Standart, 1 Ill. App. 228; Reed v. Boyd et al., 84 Ill. 66; Belanger et al. v. Hersey et al., 90 Ill. 70.
    Sec. 17 of the Lien Act provides that previous incumbrances shall be preferred to the extent of the value of the land at the time of making the contract, and the court shall ascertain what proportion of the proceeds of the sale shall be paid to the several parties in interest.
    This was not done in this case. The mortgage creditors are entirely ignored in the .decree, and the mechanic’s lien is made the first lien. Lunt v. Stephens, 75 Ill. 507; Power et al. v. McCord, 36 Ill. 214; Martin v. Eversol et al., 36 Ill. 222; Croskey et al. v. Carey et al., 48 Ill. 442; Croskey et al. v. N. W. Mfg. Co., 48 Ill. 481; Tracey v. Rogers, 69 Ill. 662; Wood et al. v. Rawlings, 76 Ill. 206.
    Mr. H. X. Wheelek, for appellee.
    This contract was partly expressed and partly implied. No definite time was fixed when the engine was to be completed, but it was completed and accepted in ninety-seven days after the contract was made, and comes clearly within the rule laid down in Orr v. N. W. Mut. Life Ins. Co., 86 Ill. 261; Clark v. Manning, 90 Ill. 380; Grundeis v. Hartwell, 90 Ill. 324; Driver v. Ford, 90 Ill. 595.
    As early as 1860, in the case of Burkhardt et al. v. Reisig, 24 Ill. 531, the right to maintain a lien for an engine was conceded. This was followed by the decision in Dobschetz et al. v. Holliday, 82 Ill. 371, in 1876, under the mechanic’s lien act of 1874. I can see nothing in either of these decisions in conflict with the lien law. In any event the doctrine of stare decisis ought to govern. The Supreme Court have placed a construction upon the statute. These parties are presumed to have contracted with a knowledge of what the law is and the construction placed on the statute by the Supreme Court.
    Nothing is better settled than that one defendant can not urge error as to a co-defendant who is not complaining and who has not appealed. Reed v. Boyd, 84 Ill. 67; Hedges v. Mace, 72 Ill. 473; Van Valken v. Trustees, 66 Ill. 103.
   Lacey, P. J.

This was a petition to foreclose a mechanic’s lien and to subject the premises, which were the lands of the coal mine of appellant, the Kankakee Coal Company, to sale for the payment of the purchase price of a “horizontal link motion engine for hoisting purposes,” which was purchased and placed on the premises for use, and for which appellant coal company promised to pay $2,200 in installments. ■ The court, upon answer, evidence and stipulation, decreed a lien for the amount and interest, amounting to $2,803.09. From this decree this appeal is taken.

Several objections are made by the appellants to the decree:

1. The petition is insufficient in that it fails to show that the contract for the purchase of the machine provided for its being placed on any particular tract of land. 2. ¡No time was specified in the contract when the machine was to be furnished. 3. The court erred in sustaining the master’s ruling in not permitting the defendants to put in evidence the written contract, under which the hoisting machine was manufactured. 4. The notes were not given in evidence for the machine, nor produced on the trial as accounted for.

We shall first consider the first point made in reference to the sufficiency of the petition as regards the place where the engine should be placed. The petition in this regard alleges “ that, on the 14th day of March, 1883, * * * said coal company made application to your petitioner to furnish.it, for use in its coal mine on the lands hereinafter named, one horizontal link motion engine for hoisting purposes, and that on the 14th day of March, 1883, your petitioner and the said coal company made a contract for said hoisting machine, to be delivered on board the cars in Chicago.” The lands thereafter named in the petition were the W. IN. E. J, and E, J, IN. W. J, and S. E., IN. E. Sec. 19, T. 32, Range 9, east; and the averment is that, “ in pursuance of said agreement (appellees) delivered said hoisting engine to said coal company, and that it was then shipped to the land of said coal company and put in use on said coal land,” etc. The averment in the petition as to where the machine was to be used when purchased is riot as clear as it might be, but, taking the entire petition together, we think it sufficiently appears that the contract contemplated that the machine was to be used where it was placed on the coal lands of the appellant above named. The statement in the petition that bv the contract the machine was “ to be delivered on board of the cars in Chicago,” does not negative the averment that by the contract it was also finally to be sent from there to be placed on the premises in question. That, we think, was also contemplated by the parties according to the contract mentioned in the petition, or at least implied from what it stated. The admission- that the contract was made as stated in tlie petition strengthens the case, as, if the petition was insufficient, the appellants should have abided their demurrer. We think the petition is sufficient in the particular complained of.

We do not think the objection made, that the petition does not aver that the engine was only placed on the E. -J-, JST. W. Sec. 19, T. 31IST., R. 9, in Kankakee county, is valid. While the petition makes this statement, it also makes the averment that the engine was placed and used on the entire coal lands of the company. The statement that the machine was placed on this particular piece of land does not necessarily negative the idea that it was placed on the entire property of the company, of which this eighty acres formed a part.

The second point in the objection,that no time was mentioned in the contract, when the machine was to be furnished, we think, under our present statute, is not well taken. The statute of 1874 makes contracts express or implied, or partly express and implied, enforcible.

The case of Fish v. Stubbings, 65 Ill. 492, was overruled in Orr v. N. W. Mut. Life Ins. Co., 85 Ill. 261, and Cloak v. Manning et al., 90 Ill. 380. The time in which the engine was to be furnished was not fixed, and therefore the law implies that it was to be furnished within a reasonable time, and valid under Sec. 1 of the Mechanic’s Lien Act of 1874, E. S., p. 665, as being partly expressed and partly implied; and under the third section of the act, as the machine was furnished within a year from the date of the contracts, the lien attached. Driver v. Ford, 90 Ill. 595.

The court did not err in sustaining the master’s ruling in not permitting appellant to introduce in evidence the written contract for the purchase of the machine. The appellants had already admitted the contract as stated in the petition, and no good purpose could have been served by admitting the written contract; and more especially as it was not pretended that it showed anything different from the one set out in the petition. This disposes of the third point. As to the fourth objection, in regard to the notes not being produced on the trial, we think if appellants had a right to call for their production, snch right has been waived.

It was admitted that the notes had not been paid and there was no demand made^for their production at the trial. They were past due, and no point of this kind was made in the court below, and we think the objection should not be allowed here, to reverse the decree.

Under the mechanic’s lien law, the right to enforce a lien similar to this, was held in Dobschuetz v. Holliday, 82 Ill. 371.

The objection that the rights of the mortgagee, H. C. Konklin, are not protected by the decree, is not well taken. The party interested in that matter, Konklin, has not appealed, and appellants can not assign for error matters which do not affect them. The same may be said as to the rights of any others claiming mortgage or other liens. Reed v. Boyd, 84 Ill. 67. The objections against the decree are of a purely technical character, and without substantial merit. The decree appears to be just, and the amount for the engine due. The decree is therefore affirmed.

Decree affirmed.


text:
    John T. Hadfield et al. v. Cyrus L. Berry.

      Sales — Bailment—Conditional Sales — Trover—■Evidence.
    1. Where goods are sold for a stipulated price with the privilege of returning what remains unsold, or where it is agreed that the same may be paid for by a stipulated time or returned in good condition, such sale, as to third parties without notice, is valid.
    2. Where the consignee is at liberty to sell and receive payment at any price he likes, but is bound, if he sells the goods, to pay for them at a fixed price and time, the transaction is a sale.
    3. In the case presented, the goods in question were liable to be levied upon as the property of the vendee.
    [Opinion filed December 8, 1888.]

      In error to the Circuit Court of Peoria County; the Hon. T. JVI. Shaw, Judge, presiding
    Messrs. McCulloch: & McCulloch, for plaintiffs in error.
    This is not the case, of a conditional sale, where an attempt is made to retain title in the seller until the price is paid. It is simply a bailment of goods with power to sell, and an obligation to return all unsold goods at a certain day. Mor is it a case of “ sale or return.” Such contracts seem to stand upon the ground that the property is delivered upon the condition that unless returned within a time certain, or within a reasonable time, the seller has a right to treat the sale as absolute. In the meantime the property remains in the seller- until he makes his election. Hilliard on Sales, p. 20, Sec. 3; Benjamin on Sales, Secs. 597-9; Hunt v. Wyman, 100 Mass. 198.
    The case of Meldrum v. Snow, 9 Pick. 441, is directly in point. A brewer supplied a retailer with a large quantity of beer in the winter time, the retailer to pay for all he should sell during the season, loss by casualty to fall upon the brewer; and if any beer remained unsold at the end of the season, the retailer had the right to return it to the brewer, but the latter had no right to take it without his consent. Payments to be made semi-annually; profits went to the retailer and all losses by bad debts to fall upon him. In a suit between the brewer and attaching creditors it was held that the brewer was still the owner. And it- was held that it made no difference that it was optional with the retailer to return or not. Citing Blood v. Palmer, 2 Fairfield, 414; Whitewell v. Vincent, 4 Pick, 452, n.; Long on Sales, 181, 199, 2000; Sargent v. Giles, 8 N. H. 325; Ayers v. Bartlett, 9 Pick. 159.
    The case of Moss v. Stone, 5 Barb. 516, was replevin by the alleged seller against an officer making a levy on a stock of goods received by the debtor “ as per bill * * * to sell and account for the amount of $293.86, or return in as good condition as when taken.” This was held to be a bailment and not a sale.
    In Boston and Maine R. R. Co. v. Warrior Mower Company, 76 Maine, 251, Dunham had received machines to be sold at certain prices of which he was to have a certain share for commission, the Mower Company to retain title until sold. This was held to be a bailment and not a sale.
    In the Weir Plow Co. v. Porter, 82 Mo. 23, goods were consigned for sale under a special contract to return those not sold, or to settle for the same by note, as the company might decide. This was held to be a bailment and not a sale.
    In the Mevill case, cited in Benjamin on Sales, supra, which was held to be a case of “ Sale or return,” it was decided that the title to the goods passed to JNevill “ as soon as he, by his sale, had put it out of his power to return them.” This carries with it an implication that until then the title remained in Towle & Co., from whom he had received them.
    The principle deducidle from these decisions is that where goods are consigned for sale, all unsold goods to be returned at a certain time, the title remains in the consignor until it is transferred to a purchaser by the authorized act of the consignee. When goods are delivered upon a “sale or return” contract, the title remains in the proposed seller until, by reason of the default of the other to return in due season, he has elected to treat the sale as absolute.
    There is a wide distinction between both classes of cases first mentioned and those where all forms of a sale have been gone through with and the seller attempts to retain title as security for the price. Any such attempt is in direct conflict with our chattel mortgage law, and therefore void.
    Messrs. Stevens, Lee & Horton, for defendant in error.
    Beginning with the case of Brundage v. Camp, 21 Ill. 330 and even earlier, the decisions of this State have been uniform upon this question of sales of personal property, and the doctrine laid down in that case is, that where all the forms of a sale have been gone through with, and a delivery made, a purchaser from the first purchaser would take title, although the conditions of the first sale had not been complied with In the case of Murch v. Wright, 46 Ill. 487, this doctrine is reiterated.
    In the case of Lonergan v. Stewart, 55 Ill. 44, the court held that when the identical thing delivered was to be returned, although in an altered form, it was a bailment; but when there was no obligation to restore the specific article, and the receiver was at liberty to return any other thing of equal value, he became debtor to make the return, and the title to the property was changed. That is, it was a sale.
    How. in the case under consideration, there is no claim that Koch Brothers were ever to return all those goods. The utmost that conld be insisted upon is that they were to return such as were not sold, or store them. . They had a right to return money in place of the goods, and under the language of this last decision, having that right to return the money, the transaction must be considered a sale.
    We call the attention of the court specially to the case of Bastress et al. v. Chickering, 18 Ill. App. 198, and cases there cited, upon this question of an absolute sale. In the opinion, the court says: “The cases cited are authority for the doctrine; that where one party, by means of a contract, but without notice to the world, suffers the real ownership in chattels to he in himself, and the ostensible ownership to be in another, the law will postpone the rights of the former to those of the execution or attachment creditors of the latter, because to injure third persons by giving a false credit to such ostensible owners is the natural and probable result of the transaction.”
   Lacey, P. J.

This was an action in trover commenced by the plaintiffs in error against the defendant in error in the Circuit Court of Peoria county, charging him with having converted to his own use a quantity of what is known as Standard Fireworks,” claimed to have been the property of the plaintiffs in error. The defendant in error was the sheriff of Peoria county, and by virtue of an execution issued in favor of a judgment and execution creditor of Koch Brothers, levied on the goods in question as the property of said judgment debtors, and afterward sold the same, amounting to some $1,100 or $1,200, to satisfy such execution. The question involved here is whether the fireworks were the property of Koch Brothers, so as to be liable to be seized by their creditors, or were the property of the plaintiffs in error. The Koch Brothers, in 1886, were retail dealers in Peoria, in toys, fancy goods and fireworks, and had been in such trade about four years, and the plaintiffs in error were at the same time engaged as manufacturers and dealers in fireworks at Middle-town, Connecticut, and Mew York City.

The goods were furnished by the latter to the former for sale under a certain contract or arrangement between them; and upon the nature of that contract, whether Koch Brothers were the mere agents or bailees of appellants, or the purchasers of the goods in such a way as to make them liable to seizure on execution as their property, depends the right of the plaintiffs in error to recover. The court below tried the case without a jury, and found in favor of the defendant in error, holding that, as against the judgment creditors, the property was that of Koch Brothers, and gave judgment against plaintiff in error for costs. From this judgment this appeal is taken. Counsel for plaintiffs in error insist that Koch Brothers were the mere bailees of the said goods, and that they were the legal owners, and that the same could not be seized and held as the property of Koch Brothers.

The decision of this case involves a consideration of the law applicable to conditional sales where the rights of third parties become involved, as well as the real nature of the contract (between appellants and Koch Brothers. However the law may be in other States, in this State it is well settled that where property is sold and delivered by the vendor to the vendee it makes no difference what condition may be attached to such sale for the security of the purchase price, either by reserving a lien on the thing sold, or providing that the title shall remain in the vendor till the property is paid for, or condition of forfeiture for non-compliance with the terms of sale; as to innocent purchasers without notice and execution creditors, the absolute title in the property passes to the vendee, and all such conditions are void under our chattel mortgage act. Brundage v. Camp, 21 Ill. 330; Murch v. Wright, 46 Ill. 487; Lonergan v. Stewart, 55 Ill. 44; Bastress v. Chickering, 18 Ill. App. 198. The conditions and agreement, however, remain valid as between the parties themselves.

Where property is sold for a stipulated price with the privilege to return the unsold portion, or sold to be paid for by a stipulated time or returned in good condition, the sale as to third parties who purchase without notice, is valid. Warder v. Hoover, 51 Ia. 491; Martin v. Adams, 104 Mass. 262; Kinney v. Brodlee, 117 Mass. 321; Robinson v. Fairbanks, 23 Reporter, 521.

There is no complaint by the plaintiff in error but that the court held the law for him as favorably as he could desire, but that the court found the facts against him contrary to the weight of the evidence. The propositions asked by the plaintiff in error to be held for them, which were refused, were properly rejected. First, the court was asked to find for plaintiffs in error on portions of the evidence, and then all the evidence, which was simply asking the court to pass on questions of fact which the law does not require the judge to do in that form; second, the plaintiffs in error got the benefit of the law as favorably as they could ask. The court held in substance that the law was, if the goods were held by Koch Brothers, as bailees of plaintiffs in error, then they should recover; but the court found from the facts that they did not so hold the goods. If we understand the contention of counsel for plaintiffs in error, it is that the nature of the contract between Koch Brothers and them as to the fireworks was, that the goods were to remain with the latter as the goods of plaintiffs in error-, subject to be sold by Koch Brothers, until July 10th, when the portion remaining unsold was to be returned to them either at the factory or by storing them in Peoria; that at no time did Koch Brothers, either before or after the 10th day of July, have the option to pay for the goods in cash, or return them and cancel the debt. That the contract was to pay for only such of the goods as they might sell, and no debt was created for the “unsold residue.” The plaintiffs in error attempt to support their claim by the evidence of Charles B. Bidwell, and of the plaintiffs in error and John B. Kennedy, Jr., their agent. But all the evidence and circumstances should be taken together in determining the real character of the transaction. What we must now determine is, was there evidence from which the court below could properly find that the arrangement about the fireworks was a sale within the meaning of the law.

It appears from the evidence that Koch Brothers had been dealing with plaintiffs in error concerning their fireworks in a similar manner since 1884. They show a letter from JolmB. Kennedy, Jr., dated April 7,1884, to Koch Brothers, in which he was making propositions to them in behalf of his principals to handle the fireworks, and in pursuance of which they did handle them in 1884 and 1885, which reads as follows: “The proposition made by me and sanctioned by H. & B. was that you return any goods you have left, if yon wish, at no expense to us, and ten per cent, reduction on the invoice of those returned to pay for putting them in merchantable shape again. * * * We give our fireworks to nobody with the privilege of returning except on terms herein, and have but few accounts of that nature.” August Koch testifies that his firm purchased goods under the terms of the letter in 1884 and in 1885, but not exactly on the same terms in 1886. He says: “The point of difference was that we were not expected to return the goods as we had been in the habit of doing, but were to keep them stored until further orders. Our agreement had no ¡particular reference to this letter; don’t know that it was thought of. It was simply a continuation of the arrangement we had with this difference: being "in previous jmars compelled to return the goods after the fourth of July, in this year we were not compelled to do that, if we chose to keep them here. * * * We did not keep any separate account of the goods sold by ns, but then we knew what goods of theirs were sold right along. * * * Hadfield & Bidwell were credited on our books with the goods we got of them. * * * We sold some fireworks on credit and they were charged in the usual way we charged other goods. * * * We used the money in connection with our own business. We could sell the goods at any price we saw fit above or below the invoice price.”

It appears that the goods were billed to Koch Brothers at ten per cent, less than wholesale value; that Koch Brothers paid all freight.

.How, it is shown by the deposition of plaintiff in error, Iladfield, that the arrangement to furnish goods to Koch Brothers in 1883 was made through John B. Kennedy, Jr., “to act as agents of Iladfield & Bid well and sell for our account such consignment of fireworks as they might order from time to time with settlement July 10, 1886, for all goods sold at that time with privilege of returning remainder unsold to Iladfield & Bid wed, or holding them subject to our order.” The contract was made according to explicit instructions, “ given to him to that effect.” The testimony of Kennedy as to the contract as regards returning the goods was that they were to be returned to the factory of Hadfield & Bidwell free of expense to H. & B., or held for them in Peoria, subject to their order. The agreement I made in-1886 had no reference to any former agreement.”

It seems to us that there was ample testimony from which the court below could find that this was a sale of the goods with the privelige to pay for them as to the unsold portion in the goods themselves. Mr. Hadfield himself states that Koch Brothers had the privelege to return them, not that they were compelled to do so. The letter of 1881 expressly makes the return optional and there was ample testimony from which to find that the old arrangement as to that point remained in force, in 1886. If that be the case the title of the goods was in Koch Brothers from the time they were delivered till July 10, 1886, at a stipulated price which was named in the bills sent with the goods with an option on July 10, 1886, either to pay for the goods at that price in cash or return them.

The goods were levied on before the 10th of July and before any return. In our opinion the evidence sustains the- finding of the judge that the property was sold for cash, with the right to return the unsold portion. Warder v. Hoover, 51 Ia., supra; Robinson v. Fairbanks, 23 Reporter, 521. In the latter case it is said, on the facts similar to the facts here: “ In our judgment the contract was not a bailment or a sale on trial or approval in which there is no sale until approval is given expressly or by implication; but it more nearly resembles a contract or bargain of sale or return, which vests the property in the goods, or so much of them as remained on hand at a fixed day in the future. , This day is stated to be January 1, 1886. Until then Huston & Company had an unquestionable right to sell the goods for cash, on credit or in satisfaction of their antecedent debts, and even after such date, the goods unsold and on hand were theirs, with an option to return them to plaintiffs, which is nothing more nor less than a mere privilege to rescind the sale.”

Benjamin, in his work on Sales. Sec. 598, commenting on JEx parte White, says: “But if the consignee is at liberty to sell at any price he likes, and receive payment at any price he likes, but is to be bound, if he sells the goods, to pay the consignor for them at a fixed price and a fixed time, in my opinion, whatever the parties may think, the relation is not that of principal and agent, and in point of law the alleged agent in such a case is making on his own account a purchase from his alleged principal, and is again reselling.”

These remarks are particularly apposite to the facts in the case at bar. Koch Brothers had full and absolute control of the sale of the goods as much as if the sale, if it be a sale, had no conditions.

They sold the goods on the market for cash or on credit the same as their other goods, kept no separate books, but used the proceeds of such sales in their general business, without any restrictions from plaintiffs in error. All that plaintiffs in error had for security for the goods sold was the individual responsibility of Koch Brothers. We can not doubt but that, in view of the law and from the evidence, the court below was fully justified in finding the issues for defendant in error. The judgment is, therefore, affirmed.

Judgmeht. affirmed.


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    Thomas H. Wheeler v. Eleanor Wheeler, Administratrix.

      Administration — Note—-Want of Consideration — Discharge in Bankruptcy — Subsequent Promise — When Made — Instructions.
    1. In an action against an estate on a promissory note, the defense being want of consideration, because given to save something out of a bankrupt estate, and discharge in bankruptcy, it is held: That it was improper to instruct the jury that, to entitle the plaintiff to recover against the certificate of discharge, the burden of proof was upon him to show that his claim was fair and honest and that the promise to revive the note was made after the maker’s discharge in bankruptcy; that, upon the production of the note with evidence of a subsequent promise by the maker after the filing of his petition, the burden of proof to show want of consideration was upon the defendant; and that the instruction in question was misleading in regard to whom the subsequent promise was made.
    2. A subsequent promise by a bankrupt to pay a note previously given by him is not required to be made after his discharge. It is sufficient to revive the note if made after the petition in bankruptcy is filed.
    8. An instruction calling special attention to certain parts of the evidence is improper.
    [Opinion filed December 8, 1888.]
    Appeal from tbe Circuit Court of Livingston County; tlie Hon. Alfred Sample, Judge, presiding.
    Messrs. A. E. Harding and Steawn & Patton, for appellant.
    Mr. J. T. Terry, for appellee.
    A promise or acknowledgment to one'notthe creditor or bis agent for that pmpose, will not revive a debt barred by a discharge in bankruptcy. Carroll v. Forsythe, 69 Ill. 127; Katz v. Messenger, 7 Ill. App. 536; Bloomfield v. Bloomfield, 7 Ill. App. 261; McGrew v. Forsythe, 80 Ill. 596; Wachter v. Albee, 80 Ill. 47.
   Lacey, P. J.

This suit was based upon a note (or copy of it) gi\ren by O. B. Wheeler, deceased, in his lifetime, to appellant, for 82,000, dated April 1, 1878. The defendant in the case is the administratrix of said decedent who died March 15, 1886, without having paid the note. Within two years from the death of O. B. Wheeler, the appellant filed his claim, based on this note, against the estate. On the trial in the County Court the claim was disallowed, and the case was appealed to the Circuit Court with like results. The appellee interposed two defenses to the recovery on the note: 1st, that the note was originally given without consideration, in that it was given in contemplation of bankruptcy, and to save something out of the estate to the bankrupt; 2d, a discharge in bankruptcy. The appellant is the son of the deceased.

"The appellant, in rebuttal to the claimed discharge in bankruptcy, sets iip and insists on a subsequent promise made by deceased to appellant, to pay the note made after the deceased went into bankruptcy in the United States District Court of the Northern District of Illinois, in Chicago; that the promise was made in consideration that appellant would sign a petition consenting to a dismissal of the said bankruptcy proceedings. The appellant also contends that there was ample consideration in work and labor performed by him for his father after he became of age. The discharge in bankruptcy of deceased bears date January 21, 1880, and the order of dismissal of the bankrupt proceedings was December 19, 1882. The alleged promise to pay the note was made between those dates. There was no evidence to show that this discharge was ever set aside. But A. E. Harding, attorney for appellant, filed his affidavit in behalf of appellant in support of his motion for a new trial, in which he shows that the record in the United States District Court showed that the certificate in bankruptcy had been set aside and annulled, and that on the trial he had the sole charge of procuring the testimony, and that in order to be ready for trial he sent to the clerk of said bankrupt court for a certified copy of all orders in the bankruptcy proceedings subsequent to the order adjudicating him a bankrupt, and that said clerk sent him a certified copy of the order dismissing such proceedings, which affiant was advised was the final and only order in the cause subsequent to such adjudication, and affiant believed such to be the fact and did not know or learn to the contrary till on the trial of the cause, and had no knowledge of any discharge till the certificate was introduced in evidence and did not know that there had been an order setting aside such discharge until after the certificate had been offered in evidence, and then he learned for the first time of such fact, and that it had been set aside over a year before the proceedings were dismissed; that his client was wholly ignorant of all the steps that had been taken in the bankruptcy proceedings except the adjudication and final dismissal, and his proof of a claim against the bankrupt estate and the fact that he signed the consent to the dismissal, and learned on the trial for the first time, as affiant believed, of the discharge and the order setting it aside. The affiant further stated that on Monday following the trial, he called at the office of said bankruptcy court to obtain a certified copy of the order setting aside the discharge to use on the hearing of the motion for a new trial, and he was informed the clerk was sick and the party in charge too busy to attend to it, and he then made arrangements to have a certified copy of said vacation order sent to him at Pontiac, but up to the present time it had not come, and therefore prayed for a new trial on behalf of his client.

The appellant complains of the 5th, 6th and 7tli instructions' given on behalf of the appellee. The 5th, in substance, was to inform the jury that the discharge in bankruptcy was sufficient, frima facie, to discharge all the bankrupt’s debts provable at the time the petition in bankruptcy was filed, and that appellant’s claim was so provable. We see no error in the above instruction. It appears to announce a correct principle of law.

The 6th instruction we regard as erroneous and calculated to mislead the jury and to give undue prominence to certain evidence by calling special attention to it to the disparagement of all the other evidence, and especially the appellant’s rebuttal evidence. It is as follows:

' “6. You are instructed for the estate that in determining the real motive in giving of the note in question, whether to save to the deceased, Oscar B. Wheeler, something out of the bankrupt assets, or whether on the other hand he was honestly indebted to claimant, Thomas H. Wheeler, you are at liberty to consider (if proven) the amount of labor (if any) done by claimant Thomas for the deceased, Oscar B. Wheeler, in his lifetime, and after he attained the age of twenty-one years.”

Such instructions have been so often condemned by this an¿ the Supreme Court, and the law is so well settled, that it is not necessary to refer to authorities. The 7th instruction was also erroneous. It tells the jury that the discharge was po'ima facie evidence of a bar to appellant’s claim, and that ‘‘to entitle him to recover against such certificate of discharge he must not only show his claim to be fair and honest under the rules of law laid down in the other instructions, but you must also believe from the evidence that after such discharge was granted, Oscar B. Wheeler promised the claimant, Thomas II. Wheeler, that ho would pay the claim in question. A promise or acknowledgment to the witness Chubbuck or any other person than claimant himself, or his agent authorized to accept such promise, would not be sufficient.”

In the first place the above instruction is erroneous in holding that in order to revive the debt after discharge appellant must show it to be fair and honest. That is, that appellant must take the burden of proof on himself to show that the original consideration of the note was good and valid besides showing the subsequent promise. This he was not bound to do. If he produced the note and showed by the evidence the subsequent promise, after the deceased had filed his petition in bankruptcy, that he would pay appellant the note,- that was all he was required to do. The burden of proof would then be on appellee to show that the original note was without consideration the same as though there had been no bankruptcy. The discharge does not imply that there was no good consideration originally for the note. Such matter is not involved in any inquiry in the bankruptcy proceeding. The instruction was further erroneous in holding that the subsequent promise to pay the note in order to have the effect to revive it, must have been made by the deceased after the discharge was granted. It is sufficient if the promise is made after the petition in bankruptcy is filed. Cheny v. Barge, 26 Ill. App. 182.

The 7th instruction is further erroneous and misleading in that the jury would be liable to understand that the court held that the promise of deceased made in presence of appellant and Chubbuck was made to Chubbuck alone and not to the appellant, and that all the testimony given in by Chub-buck related only to a promise made to the latter by deceased to pay the note when he was not the agent to receive such a promise. It will be seen from the evidence that Chubbuck does not testify the promise was made to him. Appellant, the deceased, and Chubbuck, were together, all attending to the drawing up of the petition to have the bankruptcy proceedings dismissed. It was the conversation had in the presence of all concerning the payment of the note in suit to appellant that Chubbuck was testifying to, and not any promise made to Chubbuck. He says: “Tom said he was willing to wait for his father to pay it. O. B. Wheeler said as soon as he could get the money he would ¡Day it.” This was not a promise made to Chubbuck but to appellant in his presence. In this assumption the instruction was unfair and mischievous. The instruction may have referred to conversation held between Chubbuck and O. B. Wheeler subsequently, and out of the presence of appellant, but it does not distinguish; and besides, this evidence does not appear to refer to any promise to Chubbuck but to admissions made by O. B. Wheeler to Chub-buck. Chubbuck was not claiming that any promise was made to him, and the evidence could have no other force excepting corroboration of other promises and admissions. Pope gave similar evidence, but this could not be construed into a promise to Pope by O. B. Wheeler; whatever force the evidence had was, as said, corroborative. We find no fault with appellee’s 11th instruction. There being sufficient error in the record already noted to reverse the judgment it will not be necessary to pass upon the sufficiency of the affidavits for the purpose aimed at, read on motion for a new trial. If the order granting a discharge or the discharge itself was annulled, appellant will have an opportunity to produce it on another trial.

There was strong evidence tending to show that there was a valuable consideration originally for the note, and if it turns out that there was no discharge in bankruptcy in force, then the only issue will he on the original consideration of the note. The judgment is therefore reversed and the cause remanded.

Heversed and rememded.