text:
    Hollis R. Warren, Individually and as Executor of Last Will and Testament of Anne E. Lewis, Deceased, et al., Appellees, v. Warren McRoberts et al., Appellants. Nettie J. Young, Appellee.
    Gen. No. 9,786.

      Heard in this court at the May term, 1942.
    Opinion filed August 21, 1942.
    Harold E. Wilson, of Muscatine, Iowa, and Huber & Reidy, of Rock Island, for appellants; Harold E. Wilson, of Muscatine, Iowa, and Albert Huber and Isador I. Katz, both of Rock Island, of counsel.
    S. E. & Geo. D. Long, of East Moline, and Bell, Farrar & Scott, of Rock Island, for appellees; S. E. Long, of East Moline, and Earl L. Scott, of Rock Island, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

Anne E. Lewis died January 18, 1940 leaving an estate of approximately $150,000. Hollis R. Warren, individually, and as executor of the last will and testament of Anne E. Lewis, deceased, et al., filed a suit in the circuit court of Rock Island county, Illinois, asking for a construction of the 5th clause or that part of the will of Anne E. Lewis, deceased, which disposes of the residue of her estate. The said 5th clause of the will is as follows: “Fifth: I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, of whatsoever kind and nature and wheresoever situated, to my following nieces and nephews living at the time of my death and the then living issue of any of my deceased nieces or nephews per stirpes and not per capita, to-wit: Myra L. Porter, Emma Fisk, Minnie G. Mitchell, Nettie J. Young, Burton Bowles, Belle Smith, Ethel Skinner, Grace Crawford, Hattie Baxter and Hollis R. Warren, share and share alike, to have and to hold the same as their absolute estate forever.” The ten nieces and nephews named in the 5th paragraph of said will are all the nieces and nephews of the said testatrix who were living at the time she made her will. Myra L. Porter died before the death of the testatrix, leaving a daughter, Jessie Bliss, one of the plaintiffs. Hattie Baxter was also deceased at the time of the death of the testatrix, but left no issue. Hollis R. Warren, named in said paragraph, is a nephew and also the executor of the last will and testament of Anne E. Lewis, deceased. The plaintiffs in the circuit court were Jessie Bliss, Hollis R. Warren, individually, and as executor, etc., Emma Fisk, Minnie G. Mitchell, Burton Bowles, Belle Smith, Ethel Skinner, and Grace Crawford. Nettie J. Young, one of the nieces mentioned in the will, was made a party defendant, although her interest was the same as the other nieces and nephews named by the testatrix in the said will. Nettie J. Young died after a decree was rendered in the circuit court, and before notice of appeal was served. The administrator of her estate was substituted a party to the litigation.

Surviving at the time of the death of testatrix were the defendants, Warren McRoberts, Charles McRob-erts, Mildred Wurster and Morris Warren, the issue of a deceased niece, and a deceased nephew of the testatrix, which deceased nephew and deceased niece were not living at the time of the death of the testatrix, nor at the time of the making of her will, and are not among the ten nieces and nephews named in said 5th paragraph thereof. The contention of the plaintiffs is that only those nephews and nieces who are named in said 5th paragraph of the will, and who survived the testatrix, or the surviving issue of any of said named nieces or nephews who did not survive the testatrix participated in the estate under said 5th paragraph of the will. The defendant, Nettie J. Young, joined with the plaintiffs in this contention. The other defendants contend that under said 5th paragraph, the residuary estate goes to all the ten nieces and nephews named in said 5th paragraph, who had survived the testatrix, and the issue surviving the said testatrix, of any deceased nieces or nephews of the testatrix whether named in said 5th paragraph or not.

To the complaint, the defendants filed their .answer and admitted there was a dispute as between the parties, as to the proper construction to be given to the fifth paragraph of the will in question, but denied that the plaintiffs were entitled to have the will construed, as prayed for in their bill of complaint. The defendants also filed a counterclaim stating practically the same facts, as in the bill of complaint, but setting forth their claim as to how the 5th clause of the will should be construed.

The court, after hearing some evidence, entered a decree construing the will in favor of the original complainants, that is, “That the intention of the testatrix Anne E. Lewis expressed in the Fifth item or paragraph of said last Will and Testament is that the remainder of her estate and property, after the payment of debts and specific legacies otherwise provided for in said Will should be divided equally among those members of a class consisting of Myra L. Porter, Emma Fisk, Minnie G. Mitchell, Nettie J. Young, Burton Bowles, Belle Smith, Ethel Skinner, Grace Crawford, Hattie Baxter and Hollis R. Warren, her nieces and nephews living at the time of the execution of said last Will and Testament, who should survive her, but with the further provision that in the event that any of her said nieces and nephews, who were living at the time of the execution of said Will and named therein, should precede her in death leaving issue surviving who should survive the testatrix, that such issue should take the share of the deceased parent by representation and that the executor should reduce all of her property to cash for the purpose of distribution. It was further ordered, adjudged and decreed by the Court that in making distribution of the remainder of the estate of said Anne E. Lewis, deceased, passing under and to be distributed in accordance with the item or paragraph of said Will numbered ‘Fifth’ the plaintiff Hollis R. Warren shall pay and deliver over to the plaintiffs Emma Fisk, Minnie G. Mitchell, Jessie Bliss, Burton Bowles, Belle Smith, Ethel Skinner and Grace Crawford and to the defendant Nettie J. Young each an undivided one-ninth part thereof and shall pay over to himself or retain for his own individual use and benefit the remaining one-ninth part thereof.”

The court also found that the relief prayed for by the defendants in their counterclaim is for a construction of the same last will and testament that the original complaint prayed for, and that the relief for which the defendants would be entitled to, could he obtained under the original bill without the filing of a counterclaim, and that said counterclaim should he and was stricken.

It is from the decree construing the will and dismissing the defendants’ counterclaim, that they have perfected an appeal to this court. It is assigned as error by the appellants that the court erred in striking their counterclaim from the files. It is admitted that there was a dispute between the appellees, and the appellants as to the proper construction to be placed upon the will of Anne E. Lewis, deceased. According to the case of Daly v. Daly, 299 Ill. p. 268, it is stated that where a defendant relies on his answer alone, he can use the equity of his case only for the purpose of defense, but if he wishes an affirmative relief with reference to the subject matter of the original bill, he must file a cross hill. In the present case, the defendant asked for a different construction of the will from that of the plaintiffs’ hill of complaint. In striking the cross complaint in this case, it was harmless error, because we think that the court properly decided the case in favor of the appellees.

Our courts have repeatedly announced that the primary purpose in the construction of wills is to arrive at and give effect to the intention of the testator as expressed in the will. All rules of construction are designed to ascertain and give effect to this intenttion. The intention of the testator is to be gathered from the words of the will itself, as applied to the subject matter and read in the light of surrounding circumstances. The intention of the testator is to be gathered from all of the provisions of the instrument taken together, rather than from any particular form of words. All parts of a will must be construed and interpreted together as a whole, and all words employed must be given some effect, if possible. Waxenberg v. Brown, 299 Ill. App. 225; Fierke v. Elgin City Banking Co., 366 Ill. 66.

The testimony introduced in evidence seems to us to have little, if any bearing, upon the case. The will must speak for itself, and there is nothing to aid us in the interpretation of the language employed by the testatrix, or the surrounding circumstances proven on the trial. To ascertain the intent of the testatrix, we must therefore look only to the language employed by the testatrix in the 5th paragraph of her will.

It will be observed that the testatrix used the words, “to my following nieces and nephews living at the time of my death, and the then living issue of any of my deceased nieces or nephews per stirpes and not per capita to-wit,” and then names certain of her nieces and nephews. So far as the interpretation of the language in the will is concerned, the words “per stirpes” and not “per capita” could be omitted. If the contention of the appellants is correct in their interpretation of this language, it seems to us that we would have to ignore entirely the names of the enumerated nephews and nieces in the will. It cannot be successfully contended that the word “to-wit” before the names of the beneficiaries could change the meaning of the will. In the case of the People v. Nordheim, 99 Ill. 553, the petitioners filed a suit for mandamus to compel election commissioners to sign a certificate of election. The statute at that time provided that such a certificate or statement should be signed, and stated that said statement should be in the following form “to-wit,” then followed the form of certificate to be used in authenticating the returns of the election. The Supreme Court, in discussing what the word to-wit meant in the sense it was used in the statute, is, “that is to say.” The testatrix, in using the wurd to-wdt in her will, evidently meant to use it in this sense, that is to say the nephews and nieces named in the will, were the ones to share in her estate.

In the case of J. R. Kilgore & Son v. Shannon & Co., 6 Ala. App. 537, 60 So. 520, the court of appeals of the State of Alabama, in discussing what the word to-wit meant' uses this language: “We have frequently referred to the fact that the true meaning of a word can only be determined by the context. The phrase ‘to wit,’ as used in legal documents, is a phrase which is illustrative of the above truism. In pleading its office is to state time, place, numbers, or manner, which are not of the essence of the matter in issue, so that they may not be. proved strictly as laid. Brown v. Berry, 47 Ill. 175; State v. Heck, 23 Minn. 549; Sullivan v. State, 67 Miss. 346, 7 South. 275; 8 Words and Phrases, 6992. When not used in pleading for the above purpose, the general office of the phrase ‘to-wit’ seems to be ‘to particularize what is too general in a preceding sentence, and render clear, and of certain application, what might seem otherwise doubtful or obscure; words used to call attention to a more particular specification of what has preceded.’ 38 Cyc. pp. 591, 592. In pleading, except when used to designate time, place, numbers,* or manner, the above definition quoted from 38 Cyc. seems to be the appropriate office of the phrase.

“When used other than in pleading", the universal meaning accorded to the phrase seems to be ‘to render clear, certain, and specific’ that which has preceded its use, whether the matter referred to be one of place, time, manner, or an actual existing thing.”

We think that when the testatrix used the word “to-wit” before she named the nephews and nieces in her will, she indicated her intention to render clear and certain and make specific the nephews and nieces that she intended to share in the distribution of her estate.

It is our conclusion that the trial court properly construed the will in question, and the decree of the trial court appealed from should be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Wolfe

license: Public Domain

text:
    Bernard J. Delihanty, Appellee, v. Elizabeth M. Dille et al. Phillip M. Fisher and Phillip A. Odell, Appellants, v. Bernard J. Delihanty et al., Appellees.
    Gen. No. 9,794.

      Heard in this court at the May term, 1942.
    Opinion filed August 21, 1942.
    Sidney E. Baskin, of Joliet, for appellants.
    Frank J. Jones, of Joliet, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

Bernard J. Delihanty who was the plaintiff in the trial court, filed a complaint in equity, for a partition of a tract of real estate located in Joliet, Will county, Illinois. His interest was acquired through purchase of $18,000 of a $30,000 mortgage loan executed in 1927, by Catherine McCracken and her children. In 1932, the McCracken family conveyed their equity in the said premises to John F. Ruva, as trustee for the holders of the notes represented in said loan. Through mesne conveyances from John F. Ruva, the record title passed to Elmer O. G-rohne and M. H. Hollings-worth, who still hold the record title to said premises. In the partition suit they were sued as trustees, and were defaulted at the trial. They testified that they had no claim or personal interest in the real estate, but admitted the trust.

The second class of defendants were tenants, all of whom were defaulted. Five members of the Catherine McCracken family who owned the real estate, prior to the conveyances above referred to, were made parties defendant. All filed their answers and their counsel attended the trial. Their answers as amended, confessed each and every allegation of appellee’s complaint. The remaining defendants, namely, Elizabeth M. Dille, Sylvia M. Elwood, Louis Meader, Jr., James E. Newkirk, Leafie Paige, George C. Brethauer, and the appellants, Phillip M. Fisher and Phillip A. Odell, were interested because of their ownership of that portion of the $30,000 - mortgage loan referred to above, aggregating $12,000, which was not owned by the appellees.

The complaint set forth that they were beneficial owners of the real estate equally with appellee, in proportions which their several ownerships of the mortgage loan bore to the entire issue. With the exception of the appellants, Phillip M. Fisher and Phillip A. Odell, and one other owner, all of these beneficial owners were defaulted at the trial. The other owner was John M. Weese, executor, who filed an answer, but did not appear in person, or by counsel at the trial. His note had been deposited with the others. All the notes of the $30,000 issue, including appellants’ were introduced in evidence without objection.

The appellants’ interests were not disclosed until the trial of the case. Previously the ownership of $4,000 worth of notes owned by the appellants had been claimed by Betty Colona, a stenographer employed by the Hon. Sidney E. Baskin, the attorney for the appellants. When it developed that Phillip M. Fisher and Phillip A. Odell were the real parties in interest of the notes held by Betty Colona, they were granted leave to be made parties defendant. They filed their answers, and adopted all of the former pleadings filed by Betty Colona, and stipulated that they would be bound by all the evidence heretofore taken in the trial of the case. In the proceedings, was a countercom-plaint filed by Betty Colona in which she asked that the trial court hold that the notes held by her, should be declared as a first lien on the premises in question, and prior to all other liens or holders of the $30,000 mortgage notes.

It is conceded that by the deed of March 10, 1932, to John F. Euva, the Catherine McCracken family divested themselves of, and vested title in a trustee for the benefit of all holders in the $30,000 mortgage notes except appellants, and that thereby such owners acquired a beneficial ownership of the property; that appellee is entitled to a partition decree, and that the appellants do not object to the trial court’s action ordering a partition of the premises; that the McCrac-ken family have no interest in the property; that the deed to Mr. Euva effected as what is termed a “merger,” of the fee and the mortgage, as to all of the holders of the $30,000 mortgage issue. It was further stipulated that such fellow owners agreed to accept the property, and liquidation of the debt. This, of course, does not apply to the notes held by the appellants. It is also admitted that the trust agreement set no definite time for the sale of the property, or for its own determination.

The four notes, each for $1,000 each a part of the $30,000 issue, above described, now owned by the appellants, were never deposited with the Illinois Security Company, the depository, because appellants say that they were not parties to the arrangements by which the other holders accepted title to the mortgage premises by a deed from the McCracken family to Mr. Euva, and that they did not thereby acquire beneficial proportionate ownership in the real estate, but that their notes retained their mortgage character, and that appellants should now have a first lien to the extent of the principal and accrued interest on the proceeds of the sale of the property.

In 1927, the real estate involved, was owned by Catherine McCracken and her sons. In that year they conveyed it by trust deed to secure twenty-two notes aggregating $30,000. The loan was underwritten by the Commercial Trust and Savings Bank of Joliet, which bank merged with the First National Bank of Joliet in 1929. All real estate loans of the latter bank were serviced by Woodruff Securities Company, an affiliate, which later changed its name to Illinois Securities Company.

Five days before the maturity of this loan, the Catherine McCracken family informed Mr. C. J. Graham, one of the vice presidents of the Illinois Securities Company, that they could not pay the notes, and the loan would be defaulted, and offered to convey their equity in the premises to avoid foreclosure. This offer was accepted by Mr. Graham. A deed was executed and recorded vesting the title to John F. Suva, an employee of the securities company. All the note-holders were notified of this agreement, and the delivery of the deed. Mr. Graham agreed with the McCracken family that the deed was to be taken in satisfaction of the mortgage debt, and that the notes would be surrendered, and the trust deed released. Several noteholders’ meetings were held, and the deposit of all notes was requested by the securities company, and all notes were deposited with the exception of notes aggregating $9,000 owned by three individuals, namely, Roy Murray, Miriam Berko vitz and Morris Turk. The notes owned by Roy Murray have since been transferred to the appellee, and are not involved in this appeal. The notes owned by Miriam Berko vitz were held as collateral security for a debt that she owed the First National Bank in Joliet. Likewise the notes owned by Morris Turk were held by the same bank as collateral for indebtedness he owed the bank. Mr. Murray had repeatedly promised that he would deposit his notes with the others, but had failed to do so.

The notes held by Morris Turk and Miriam Berk-ovitz are the notes that are now held by the appellants. Mr. Woodruff, the president of the bank at the time the deed was given and accepted, testified that he, for the bank and holder of these collateral notes, agreed to the proposition and offered to surrender the notes that he held; that the notes of the bank stated on their face that the bank had a right to take over the collateral and sell it, or dispose of it any time it saw fit. Later, the bank went into receivership, and the receiver took possession of these notes which were held by the hank as collateral for the Turk and Berk-ovitz loans. The evidence is that the receiver also consented to this arrangement, to deliver over and surrender the notes, and accept in lieu thereof, a beneficial interest in the conveyed premises, hut by a rule of the comptroller of the currency, they were not permitted to surrender the notes until all other notes had been surrendered, and because of the failure of Murray to surrender his notes, the notes held by the bank had not been delivered to the trustee.

Mrs. Berkovitz, or Berk, as she is sometimes called, testified in her deposition that she had agreed to the taking of the deed to avoid foreclosure, and to accept her proportionate interest in the real estate for her notes, but her notes were not deposited, because they were held as collateral by the bank, and were not physically available to her to be deposited. Morris Turk died previous to the filing of this suit. Charles J. Graham testified that Morris Turk had made an agreement with him the same as the other noteholders, and was willing to deposit his note like the others, but was unable to make such deposit because the bank held his notes as collateral security. Mr. S. W. Woodruff, president of the First National Bank, testified that on behalf of the bank he agreed to this arrangement, and urged its completion, and that this agreement was made while the bank was a going concern, and while it held the notes as pledgee. Elmer Grohne, George Lloyd and Daniel O’Connell each testified that they had been previously connected with the receivership of the First National Bank under Mr. Robert Wallace, the receiver of the bank, and that Mr. Wallace had agreed to the plan and his deputy had called upon Mr. Roy Murray to urge him to deposit his notes so as to enable the receiver to make the deposit of the notes held by him, but it was a rule of the U. S. comptroller of the currency that a receiver should not deposit notes of this kind until all other notes of the same issue were on file, and because Murray could not deposit his notes, the receiver could not do so.

Upon a hearing of the case, the court dismissed the cross complaint of the appellants, and decreed partition of the real estate. It is from the order dismissing the cross complaint that this appeal is prosecuted.

The record discloses that on October 10,1938, Floyd Goff became receiver of the First National Bank of Joliet; that in December 1940, Miriam Berko vitz compromised her indebtedness owed to the bank by said receiver, and the two $1,000 notes deposited by her, as collateral, became the property of the receiver; that on December 30, 1940, a public sale was held by Floyd Goff, the receiver of four of the McCracken notes, two that had been owned by Mrs. Berko vitz, and the other two by Morris Turk; that said notes were sold to Maurice Rosensaft who was the successful bidder at said sale; that the notes were taken in the name of Betty Colona, but Phillip M. Fisher and Phillip A. Odell were the real purchasers of said notes; that the sale of said notes by the receiver of the said bank to the appellants, was more than nine years after the notes became due.

It seems to us the only question necessary for this court to decide is whether or not the prior holders of the notes in question agreed to surrender their notes and accept a beneficial interest in the property, as represented by the deed to the trustee.

From an examination of the record in this case, it is our conclusion and we so hold as a matter of fact, that all of the prior holders of said notes did agree that they should surrender their notes and any interest that they had in the mortgage by reason of their notes, should be merged with the fee. When the receiver of the bank transferred title to the notes to the appellants, he could transfer no better title than he had and appellants could acquire no rights, which the receiver did not possess. The receiver and his predecessors could transfer no better title than the bank had at the time the receiver took possession of the bank. As before stated, the appellants purchased these notes nine years after they became due, so that any agreement that the noteholders may have made relative to the surrender of the notes, and their interest in the mortgage premises, was binding upon the appellants at the time that they purchased the notes. King v. Harpster, 306 Ill. 202; Harris v. Ingleside Bldg. Corp., 370 Ill. 617. The court properly decreed that the counterclaim filed in said suit by Betty Colona, which counterclaim was adopted by the defendants, Phillip M. Fisher and Phillip A. Odell, be dismissed for want of equity.

The decree of the circuit court is hereby affirmed.

Affirmed.


author: Justice Wolfe.

text:
    In re Lewis E. Ingalls Trust. Myra H. Peale et al., Appellants, v. Arthur J. Hughes, Appellee.
    Gen. No. 9,781.
    Heard in this court at May term, 1942;
    opinion filed August 21, 1942.
    Robert W. Childs and Bobb, Spoerri, Bourland & Harris, for certain appellants; William L. Bourland, of counsel; Frederick A. Hill, for certain other appellant; Philip A. Gibbons and Wise, Duffy & Wise, for appellee; Philip A. Gibbons, of counsel.
   Opinion by

Justice Wolfe.

“Not to be published in full.”


author: Mr. Justice Hebel

text:
    Frank Bobalek, Minor, by Stephen Bobalek, His Next Friend, and Stephen Bobalek, Appellees, v. Ralph L. Atlass, Appellant.
    Gen. No. 40,968.

      Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed June 24, 1942.
    Rehearing denied September 18, 1942.
    Hinshaw & Culbertson, of Chicago, for appellant; Oswell G. Treadway, of Chicago, of counsel.
    Lee D. Mathias and Joseph Stealer, both of Chicago, for appellees; Clyde L. Todd, of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This appeal involves two actions, one, brought by Frank Bobalek, a minor, by Stephen Bobalek, his next friend, against Ralph L. Atlass, defendant, to recover damages for personal injuries alleged to have been sustained while riding in an automobile belonging to Stephen Bobalek, the other plaintiff, and driven by Stephen Bobalek, Jr., when the said automobile in which he was riding turned over at the intersection of Foster avenue and Leavitt street, public highways in the City of Chicago, Illinois; and the other, brought by Stephen Bobalek to recover for damages to his automobile and for moneys expended for hospital and medical expenses on behalf of the other plaintiff, Frank Bobalek, who is his son.

The complaint consisted of six counts, numbers I, III and V, purporting to state a cause of action against, for, and on behalf of the plaintiff, Frank Bobalek, a minor, and numbers II, IV and VI, purporting to state a cause of action for and on behalf of the plaintiff, Stephen Bobalek. Counts I, II, III, and IV charge that the defendant was guilty of negligence which caused the injuries and damages alleged to have been sustained, and Counts V and VI charge that the defendant was guilty of wilful and wanton misconduct. The case was tried before a jury, which returned two verdicts, one finding the defendant guilty as to the plaintiff, Frank Bobalek, and assessing his damages at $7,500, and the other finding the defendant guilty as to the plaintiff, Stephen Bobalek, and assessing his damages at the sum of $713.

The trial court submitted to the jury the following interrogatory: ‘ ‘Was the defendant guilty of wilful and wanton misconduct which proximately contributed to the injury of Frank Bobalek, a minor, as alleged in the complaint?”; which question was answered in the negative. Defendant filed his motion for new trial, which was overruled. Plaintiff, Stephen Bobalek, filed a remittitur of $13 and judgments were entered in the sum $7,500 on the verdict in favor of Frank Bobalek, a minor, and $700 on the verdict in favor of Stephen Bobalek. As before indicated, it is from these judgments that defendant appeals.

The plaintiffs suggest that defendant’s statement of the case is only partially correct, and state further that Frank Bobalek, by Stephen Bobalek, his next friend, and Stephen Bobalek, sue the defendant on separate claims, for injuries to Frank Bobalek, and damages to Stephen Bobalek growing out of an automobile accident involving plaintiff’s and defendant’s automobiles. Defendant was driving his automobile in a westerly direction along Foster avenue followed by the automobile of Stephen Bobalek, driven by Stephen Bobalek, Jr., near Leavitt street, Chicago; that a short distance west of Leavitt street the defendant after turning into the outer lane of traffic on Foster avenue suddenly turned his car to reverse his direction, without warning or signal to the driver of the Bobalek car in which Frank Bobalek was a passenger, into the path of the latter car then traveling in the inner lane of traffic; and that the Boba-lek car to avoid striking defendant’s car swerved to the west of Leavitt street on Foster avenue, resulting in injuries to and the amputation of part of Frank Bobalek’s right hand, and damages to Stephen Bobalek for doctor’s bills, hospital bills, and medical care, and repairs to the Bobalek car.

The occurrence complained of took place at about 8:00 or 8:30 a.m. on the morning of July 16,1935, at the intersection of Foster Avenue and Leavitt street. Both streets are paved; Foster avenue runs east and west, is 40 feet wide between curbs, and accommodates four lines of traffic; and Leavitt street runs north and south and is 28 feet wide between curbs. On the morning in question, at about 5:30 a.m. the plaintiff Stephen Boba-lek, his son, Stephen Bobalek, Jr., Frank Bobalek, and Vincent Nemcek, a cousin of the boys, left the Bobalek home at 4045 N. St. Louis avenue, in the Buick automobile of Stephen Bobalek, and drove to 5200 Kenmore avenue, which was the place of the plaintiff, Stephen Bobalek’s work. The boys assisted the father with the work until about 8:00 a.m. when they started home in the automobile, Stephen Bobalek, Jr., doing the driving. They proceeded west on Foster avenue.

The defendant, Ralph Atlass, driving a Packard automobile, was also traveling west on Foster avenue. Apparently the Atlass car had been some distance ahead of the Bobalek car as the boys in the Bobalek car did not notice it until they approached Damen avenue, two blocks east of Leavitt street. As the two cars approached Leavitt street the Atlass car was still some distance ahead of the Bobalek car and both cars were traveling in the inner traffic lane on the north side of Foster avenue. As the Atlass car approached Leavitt street it slowed down. Although the Bobalek car was gaining on it, the driver of the Bobalek car gave no warning signal of his approach.

The evidence with respect to how the accident happened is in conflict. The defendant, who was alone in his car at the time, testified that he observed the approach of the Bobalek car in his mirror when it was about a block behind him; that it was traveling at a high rate of speed; that he intended to turn left on Leavitt street and that he slowed his car down to stop with the front of the car at the center of the intersection, intending to allow the Bobalek car to pass before making his turn; that the next he saw of the Bobalek car it was sliding past him on its right side; that it came to a rest at the southwest corner of the intersection with the top to the south and the radiator facing east; that there was no contact between the cars; that there were stop lights on the rear of his (Atlass’) car; that they operate by a foot brake, and that as he slowed down and stopped he had his foot on the brake. The speed of the Bobalek car as it approached Leavitt street was estimated by Stephen Bobalek, Jr., the driver of the car, at 25 to 28 miles per hour. Vincent Nemcek who was riding in the car estimated the speed at 25 to 35 miles per hour. Frank Bobalek stated that they were traveling on Foster avenue about 45 miles an hour behind Mr. Atlass’ car “and we were about 75 feet behind him and we came to Leavitt and he slowed down and so did we.” He further testified that “Then he (defendant) went across Leavitt and pulled to the north curb and we kept going. We stepped on the gas a little more after slowing down, to go faster, and as we passed Leavitt and we were about ten yards behind this car that pulled over, he suddenly swerved without giving any warning towards the middle of the street.” Huida Johnson, a witness for plaintiff, testified concerning the Bobalek car that “it was going fast.” The defendant testified that when he observed the Bobalek car in his mirror, at which time it was about a block to the rear of his car, it was going well over 50 miles an hour.

As to what happened at the intersection, the defendant testified that as he approached Leavitt street, he was driving in the inner lane, that he slowed down, and that he brought his car to a stop with the front end at .about the center of the intersection. Stephen Bobalek, Jr., testified that the Atlass car slowed down and pulled into the outer lane, crossed Leavitt street, and as he started to pick up his original speed, it turned into the inner traffic lane, that he swerved to avoid hitting it, applied his brakes and the car turned over. Vincent Nemcek gave substantially the same testimony as did also Frank Bobalek. These three witnesses placed the point at which the Bobalek car turned over to the west of Leavitt street.

As to the position of the cars after the accident, the defendant testified that after the accident he pulled his car over to the southwest corner of the intersection where the other car had stopped — that his car was still on Leavitt street. Stephen Bobalek, Jr., testified that Frank and his cousin got in Mr. Atlass ’ car when it was standing at the southwest corner of the intersecting streets, about one half in Leavitt and one half in Foster, to which place he had driven the car after Stephen Bobalek, Jr. got out of theirs.

The defendant contends that the verdicts of the jury are against the manifest weight of the evidence, and suggests that while the evidence is in hopeless conflict in many respects, there is by far more conflict in the facts testified to by the witnesses for the plaintiffs than between the testimony of these witnesses and the witnesses for the defendant. Defendant then goes on to point out the testimony of defendant’s witnesses. Plaintiffs’ answer to this contention of defendant is that the respective verdicts are clearly supported by the greater weight of the evidence. Plaintiffs then point out the evidence in the record tending to support their claim. From an examination of the suggestions offered as to what evidence is in the record, it would appear that there is a conflict in the evidence such as to make it a question for the jury to pass upon, under the rules applicable as to who has the greater burden of proof. Plaintiffs admit that there is a conflict in the testimony of the respective witnesses as to the facts relating to the operation of the two automobiles immediately before and at the time of the injury to the plaintiff. Four witnesses for plaintiffs saw the operation of the two cars from different positions, under different conditions, at diverse distances, and it is suggested that it would be remarkable to say the least if they agreed as to all the details of the occurrence. A fifth disinterested witness for plaintiffs corroborated the other four witnesses that the accident happened west of Leavitt street. Four of them testified that the defendant’s car suddenly turned from the north curb of Foster avenue toward the south curb of Foster avenue, into the path of the plaintiff’s west bound car, and that plaintiffs’ car swerved toward the south curb to get out of its way. It appears that there was no traffic moving east or west on Foster avenue, or north or south on Leavitt, nor were there any cars parked in the immediate vicinity at the curbs; that the weather conditions and conditions of the streets were most favorable.

When we come to pass upon the question involved, it was peculiarly for the jury to pass upon, the jury having the opportunity to observe the witnesses’ manner of testifying, and their opportunity to know the facts about which they testified. It was for the jury to determine where the truth lay as to how the accident in question happened. The verdicts indicate that the jury did not believe the testimony of defendant, but did believe the testimony of plaintiff’s witnesses. From the facts and evidence called to our attention, we are inclined to agree with plaintiffs ’ suggestion that the evidence justifies the jury’s verdict in favor of the respective plaintiffs. Plaintiffs go on to point out in detail the evidence which they believe sustains their theory and contend that the verdicts returned are sustained by the manifest weight of the evidence, that the manner of operation of the two automobiles immediately prior to and at the time of the accident was a question of fact and properly submitted to the jury, and that the court was justified in entering judgment on the verdicts.

Defendant urges that there was no evidence of contact between the two cars, but plaintiffs point out that the witness Vincent Nemcek testified that he observed a jerk of the plaintiffs’ car he was riding in at the time of the accident; that Huida Johnson testified that she heard a noise as,though the two cars clashed together; and Stephen Bobalek, Jr. testified, “I saw Atlass’ car at the hospital. I examined the car and the front left fender and the wheel were grazed.” Otto Gr. Hildebrand testified, “I examined the Packard twice. I should say the car was damaged on the front left side on the fender and the rim.” He examined the Atlass car at the hospital and saw damage to the left front fender. It is urged, too, that the turning over of the Buick car in turning to get out of the way of the Packard is further evidence of the contact of the two cars; that it is a well-known fact that a heavy machine when moving, or object when turning, as does an automobile under such circumstances may be upset, or turned over, by the very slightest contact or force, and the grazing of the left front fender of the Packard by the Buick as it was turning around is good physical evidence that the Packard did contact the Buick as it was making the turn.

Defendant next contends that the court erred in permitting Dr. Schroeder to testify that the function of the plaintiff, Frank Bobalek’s hand is about 10 per cent. In response to a direct question put to Dr. Schroeder, a witness for the plaintiffs, the doctor was permitted to testify that he was of the opinion that the function of plaintiff’s hand was about 10 per cent of that of a normal hand. Defendant moved to strike the answer but the court permitted it to stand. It is suggested that the law is well settled that it is error to permit a physician to testify to the percentage of loss of use, since that is a question which must be determined by the jury; and that the testimony of Dr. Schroeder in this regard was particularly damaging to the defendant in that it tended to minimize greatly the plaintiff’s use of his hand, whereas, the testimony of plaintiff himself indicated that he had quite considerable use of the hand and far in excess of 10 per cent. In support of defendant’s position, the case of International Coal & Mining Co. v. Industrial Commission, 293 Ill. 524, is cited. There the court said: “. . . The determination of the percent of loss of use of the right eye and of the arms of applicant was an issue of the ultimate facts before the arbitrator and the Commission. (Peabody Coal Co. v. Industrial Comm. 289 Ill. 449.) It is competent to prove conditions, such as the comparative ability of the applicant to do certain things in the use of the injured member before and after the accident, as well as any other fact which would enable the Commission to draw an inference as to the ultimate fact to be determined, but under the rule in this State neither an expert witness nor a lay witness may take the place of the Commission and declare his belief as to the ultimate fact. . . .” The rule upon this question has always been that it was not for the expert witness’ testimony to take the place of the jury, and especially as to his belief as to ultimate facts. However, when we consider the question from plaintiffs ’ standpoint, it is urged that this witness properly testified that in his opinion plaintiff’s hand had a function of about 10 per cent. Plaintiff cited Seiffe v. Seiffe, 267 Ill. App. 23, where this court in speaking of a doctor testifying to the 50 per cent loss of the use of vision of,the plaintiff’s left eye, held it to be proper, and that the trial court did not err in overruling objections thereto. There is in this record the testimony of Frank Bobalek that he had little or no movement in his right hand except in the thumb or first finger, and the jury had seen his hand when he testified, before Dr. Schroeder testified. And it is urged that it is doubtful if the jury’s mind was even affected by the doctor’s opinion because the jury only had to look at the hand to see that there was little use thereof. It appears from the evidence before the jury that they saw the second and third fingers fixed at a 50 per cent flection angle movable only sufficient to produce apposition to the thumb. The fourth and fifth fingers were missing above the metacarpal phalangeal joint, being the knuckle joint, the hand badly scarred on the back and front. The bones of the hand were badly broken and there were numerous fractures of the second, third, fourth and fifth fingers. It took the hand about 2% years to heal to its state at the time of the trial. Frank Bobalek testified that there is no movement in the joints of the second and third fingers. Dr. Schroeder testified that in his opinion the condition was permanent, and in his opinion there was about 10 per cent normal function of the hand. There was evidence of the condition of the hand before and' after the injury. The hand still pains the boy, and his right arm is not developed as the left but is a little shorter. The testimony of Frank Bobalek that his right arm was a little shorter is likewise complained of by defendant. However, after careful consideration of the suggestions offered, the facts and authorities submitted, we are of the opinion that the court was not in error in ruling as it did upon the question involved. It was for the jury to pass upon the condition of the hand, and the evidence admitted does not seem to be such as for this court to conclude that there was error in the rulings of the court upon the admission of evidence. As to the defendant’s complaint regarding the testimony of Frank Bobalek that “He turned so quick to avoid hitting him we had to turn, swerve, from hitting him,” it is, of course, true that it is not proper for a witness to testify to conclusions generally, but — -as urged by plaintiffs— a witness may testify properly in the nature of a conclusion where it is difficult to explain the subject, and particularly is this true of movements of an object. (Casey v. Kelly-Atkinson Const. Co., 240 Ill. 416.) In Knight v. Knight, 178 Ill. 553, the court refers to such testimony as a short cut to express what actually took place. In the Casey case it was held that witness properly could testify, “There was plenty of time to do a thing. ’ ’

Defendant also contends that it was error to permit Emily Bobalek to testify that the plaintiff was unable to help around the house as he did before he was hurt. In the case of International Coal S Mining Co. v. Industrial Commission, 293 Ill. 524, the court said:

“... It is competent to prove conditions, such as the comparative ability of the applicant to do certain things in the use of the injured member before and after the accident as well as any other fact which would enable the Commission to draw an inference as to the ultimate fact to be determined. ...”

Complaint is also made of the court’s refusal to strike the testimony of Dr. Wajay that, “In my opinion he can not use that hand much.” The reply made by plaintiffs is that the jury had at that time seen plaintiff’s hand, and had been told of the limited use and movements of the remaining part of the hand, and that the jury was then as competent to pass on the use of the hand as the doctor, but that the doctor’s opinion based on her experience was proper. Upon this question, authorities are cited to justify the court’s ruling.

It is the contention of defendant that the trial court erred in the giving to the jury of plaintiffs’ 10 given instructions. Plaintiffs call attention to the law applicable to given instructions at the request of both plaintiffs and defendant, namely, that they are to be considered as a single series. In Central Ry. Co. v. Bannister, 195 Ill. 48, the court said:

“Instructions are to be considered as a single series and when so considered, if as a whole they state the law correctly, that is sufficient, even though one or more of them, standing alone, might be erroneous. (Lourance v. Goodwin, 170 Ill. 390). ‘The instructions constitute one charge, and they are not the instructions of either party but of the court. . . .’ (Crowell v. People, 190 Ill. 508.) In the case at bar, counsel for appellant, in their discussion of the instructions given on behalf of the plaintiff, ignore entirely those which they requested the court to give and which were given, . . .” And in a further citation, Reivitz v. Chicago Bapid Transit Co., 327 Ill. 207, the court said:
“The office of instructions is to give information to the jury concerning the law of the case for immediate application to the subject matter before them. The test, then, is not what meaning the ingenuity of counsel can at leisure attribute to the instructions, but how and in what sense, under the evidence before them and the circumstances of the trial, ordinary men acting as jurors will understand the instructions.” Inaccuracy in an instruction is not grounds for reversal of a judgment, if from the instructions when regarded as a connected series, it is not clear that the jury were misled or had drawn improper inferences. (Gardner v. Ben Steele Weigher Mfg. Co., 142 Ill. App. 348.) In the Gardner case, it was said by the court:
“In Chicago City Railway Co. v. Mead, 206 Ill. 174, the Court held that instructions to the jury should be regarded as a connected series constituting a single charge, and that when so considered it must he clear that the jury have been misled or have drawn an improper inference from a single instruction, before the judgment will be reversed. ’ ’ In considering the instructions herein complained of, the court must therefore, consider them in the light of these authorities — as a single series. If from the entire instructions given at the request of plaintiffs and defendant, as applied to the evidence introduced and the circumstances of the trial, it appears that the jurors well understood the instructions as given, we must consider that they were clearly instructed upon the questions involved.

The defendant complains, first, of plaintiffs’ given instruction No. 1, as an instruction which sets forth the facts as alleged in the counts of the complaint. This instruction is as follows:

“There are six counts of the Complaint herein.
“In Count I it is charged that the defendant on July 16, 1935, about 8:30 A. M. drove his automobile West on Foster Avenue, near Leavitt Street in the City of Chicago; that Stephen L. Bobalek, Jr. was then and there driving the automobile of Stephen Bobalek, his father, behind defendant’s automobile West on Foster Avenue, and Frank Bobalek, a minor, one of the plaintiffs, was riding therein as a passenger;
“That as defendant’s automobile passed said Leavitt Street, he steered it to the right towards the North curb of Foster Avenue, a short distance west of Leavitt Street, thereby misleading said Stephen L. Bobalek, Jr. into believing that the defendant intended to stop at the North curb of Foster Avenue, and when the automobile driven by Stephen L. Bobalek, Jr. was within, to-wit twenty-five feet of the defendant’s automobile, the defendant carelessly and negligently abruptly turned his said automobile to the left, making a turn in said street, without extending his arm and hand horizontally as required by the Statute of Illinois, of his intention to turn left, at which time Stephen L. Bobalek, Jr. applied the brakes and turned the Bobalek automobile sharply to the left to avoid forcibly striking the defendant’s automobile, and by reason thereof plaintiff Bobalek’s automobile unavoidably turned over, and Frank Bobalek, a minor, riding therein as a passenger sustained severe permanent injuries to his right hand making necessary the amputation of two fingers and part of said hand, thereby permanently crippling the said Frank Bobalek, and impairing and diminishing his future earning power.
11 In Count II it is charged that defendant’s then operation of his automobile as alleged in Count I aforesaid resulted in material damages to plaintiff Stephen Bobalek in the necessary expense of having said automobile repaired, and the furnishing of hospital, medical and surgical services to his minor son, Frank Bobalek, for said injuries by him sustained.
“In Count III it is charged that the defendant then and there steered and turned his automobile to the left in said street to make a U turn, directly in the path of the automobile driven by Stephen L. Bobalek, Jr., without giving any signal or warning to said Stephen L. Bobalek, Jr. of the defendant’s intention, causing the two said automobiles to collide, and the Bobalek automobile to unavoidably turn over, and thereby to injure Frank Bobalek, a minor.
“In Count IV it is charged that plaintiff Stephen Bobalek sustained reasonable damages, the expense of having said automobile repaired, the reasonable expense for hospital services, physician’s and surgeon’s services furnished to his minor son, Frank Bobalek, for the injuries by him so sustained as a result of defendant’s acts as alleged in Count III.
“In Count V it is charged the defendant wilfully and wantonly, in disregard for the safety of others, and without warning or signal by extending his arm and hand horizontally, of his intention to then and there make a left turn with said automobile as Stephen L. Bobalek, Jr. was driving some twenty-five feet behind the defendant’s automobile, drove into the path of the plaintiff Bobalek’s automobile, causing the two automobiles to collide, and the Bobalek automobile to turn over, resulting in injuries to Frank Bobalek, a minor; that at and before the time in question Stephen L. Bobalek, Jr., and Frank Bobalek, a minor, plaintiff herein, were in the exercise of due care for their safety.
“And if you believe from the greater weight of the evidence that the defendant then and there drove and operated the said automobile in the manner and form as charged, and Frank Bobalek was then in the exercise of due care for his safety, you may find for plaintiff, Frank Bobalek. But if you believe from the greater weight of the evidence that the defendant then and there wilfully and wantonly operated and managed said automobile in the manner and form as charged, then contributory negligence of Frank Bobalek, if' you believe that was such contributory negligence, at and immediately before the time and place in question would not bar his right to recover herein.” So that the instruction as given sets forth the facts as alleged in each count of the complaint for the purpose of informing the jury as to the charges and allégations made. Defendant calls attention that the instruction tells the jury that in Count I of the complaint the defendant did certain acts and the plaintiff’s driver, Stephen Bobalek, Jr. did certain other acts and that “by reason thereof plaintiff Bobalek’s automobile unavoidably turned over.” Further, that the instruction tells the jury that in Count II it is alleged that the defendant did certain acts “causing the two said automobiles to collide”; that the jury are also told by this instruction that the charges made in Counts II and IV are the same as those made in Counts I and III respectively; that the jury are not told by this instruction that it is charged in the complaint or any of the counts that the defendant was negligent; and that the instruction does not leave the question of whether or not the defendant was negligent to the jury but on the contrary assumes that the particular acts alleged were negligence on his part. It is further urged that the instruction failed to advise the jury of the charge of proximate cause and to leave to the jury that question.

Plaintiffs ’ answer to defendant’s contention is that an instruction informed the jury of the material allegations charged in the complaint, particularly in the words of the complaint, is not only considered unobjectionable but to be proper, citing West Chicago St. Rys. Co. v. Lieserowitz, 197 Ill. 607; Central Ry. Co. v. Bannister, 195 Ill. 48; and Murphy v. King, 284 Ill. App. 74. This instruction, it appears summarized for the jury the material allegations alleged in the complaint, in terms of the complaint without repeating the allegations in the respective counts except by reference. Then, plaintiffs call our attention to the facts that Counts I, III and IV state a cause of action for plaintiff Frank Bobalek, a minor. Counts II, IV and VI state a cause of action for Stephen Bobalek, the father. This instruction told the jury the charges to be found in the complaint of the negligent operation of defendant’s automobile at the time and place in question, the manner of operation of the plaintiffs’ automobile with due care, and by reason of negligent operation of defendant’s automobile in the manner and form as charged in the complaint the plaintiff Frank Bobalek sustained severe permanent injuries to his right hand. It left to the jury to determine from the greater weight of the evidence whether the charges were proven against the defendant as to the claim of Frank Bobalek only. Nothing appears in the record suggesting that the jury did or might have speculated regarding the complaint. They showed by answering the special interrogatories as to the malice counts in the negative that they clearly understood the instructions. Their answer thereto in favor of the defendant eliminates further consideration of Counts V and VI of the complaint.

Counts I and III of the complaint state the necessary elements of a cause of action for Frank Bobalek, a minor, against defendant, and this court will assume that the jury based its verdict in favor of Frank Bobalek on either or both of said counts. The instruction does not omit the principle of contributory negligence of Stephen Bobalek and Stephen Bobalek, Jr. The jury were thereby told it was charged in the complaint that Stephen L. Bobalek, Jr. and Frank Bobalek, a minor, were then in the exercise of due care. The jury were further instructed with reference to contributory negligence by plaintiffs’ instruction No. 8, and further by defendant’s instructions 9 and 10. The jury were further told that it was charged in the complaint that by reason of the negligent operation of the defendant’s automobile in the manner and form as charged while Frank and Stephen Bobalek, Jr. were in the exercise of due care, Frank Bobalek was injured. Thus, it is urged the instruction does not ignore the principle of proximate cause; and that this was equivalent to saying that the negligent operation of defendant’s automobile was the proximate cause of the injury. The jury were further instructed as to proximate cause by plaintiffs’ instruction No. 8, and defendant’s instruction No. 12. Upon consideration of this instruction, it is always proper to advise the jury of the charges alleged and made so that they may properly consider the questions and pass upon them as to whether they are sustained by the evidence offered.

The defendant then goes on to complain of plaintiffs’ given instruction No. 2, which is as follows:

“If from the evidence and instructions of the Court the jury find the defendant guilty, and that Frank Bobalek, a minor, one of the plaintiffs, sustained bodily injuries and damages in the manner and form as charged, then in estimating such damages, if any, it will be proper for the jury to consider Frank’s physical condition before said injuries, the nature, extent and duration or permanency of such bodily injuries, if any, and any disfigurement of a member of his body, and the extent thereof, in so far as is shown by the evidence, if any, and the bodily pain and suffering, if any, he sustained or will sustain as a proximate result, and in consequence of such injuries, and the effect such injuries may have on his power and ability to labor, earn money and a livelihood after he reaches twenty-one years, if any, in so far as may be shown by the evidence; and any damages in so far as they are alleged in the Complaint and shown by the evidence to be the necessary and direct result of the injuries complained of. From a consideration of the facts and cir-pumstances in evidence allow the plaintiff Frank Boba-lek such sum as you believe from the evidence will be fair and just compensation to him for the injuries sustained, if any.” Defendant suggests that this instruction, as in the previous instruction, ignores the fact that there were two plaintiffs and two separate and distinct actions joined. Counts I, III and V of the complaint purport to state a cause of action for the plaintiff, Frank Bobalek, alone. Counts II, IV and VI purport to state a cause of action for the plaintiff, Stephen Bobalek, alone. The issues in the two cases are separate and distinct. The instruction in question was applicable only — urges the defendant — if the defendant was found guilty as to Counts I, III and V of the complaint. That a finding of guilty as to Counts II, IV or VI would not justify an assessment of damages for the plaintiff, Frank Bobalek; but that the instruction directs such assessment. The defendant contends that the instruction permits the jury to speculate on the effect the injuries sustained “may” have on his earning power in the future; that it does not require the bodily pain and suffering nor these losses from earning power to be proven with a reasonable degree of certainty; and cites in support of his position the case of Stevens v. Illinois Cent. R. Co., 306 Ill. 370. Plaintiffs answer defendant’s criticism of this instruction by saying that defendant’s instructions 7 and 12 each ignore the fact that there were two plaintiffs in the case, and,-therefore, counsel should not complain of plaintiffs’ instruction when defendant’s instructions may be criticized for the same reason, which, of course, is the rule. (Carlin v. Michigan Cent. R. Co., 189 Ill. App. 23.). As to defendant’s argument that this instruction is mandatory and directory, the plaintiffs suggest that the instruction does not purport to inform the jury as to the liability feature, but only to tell them what elements of damage if shown by the evidence they may consider if, from the evidence and instructions, they believe the defendant guilty. Upon consideration of a similar instruction, in Bernier v. Illinois Cent. R. Co., 296 Ill. 464, the court said:
“. . . The instruction does not direct a verdict for the plaintiff, but says simply that if the jury find the defendant guilty, then they shall award to the plaintiff certain damages. The instruction does not purport to lay down any rule regarding the liability of the plaintiff in error, but lays down a rule for the measure of damages in case plaintiff in error is found liable for the death. ’ ’ Plaintiffs further suggest that the jury were not required to speculate on the effect of Frank’s injuries and the effect which the same would have on his ability to labor, nor whether said injuries were proven by a reasonable degree of certainty. The jury saw Frank’s hand, appearing as described by Dr. Schroeder at the time of trial. By the instruction the jury were told to consider only the elements enumerated in the instruction if such were alleged in the complaint and shown by the evidence. There are other points made by defendant in criticism of the instruction, but we believe we have mentioned the vital contentions, and are inclined to agree with plaintiffs suggestions. Under the circumstances, we are of the opinion that there was no reversible error in the giving of this instruction.

Then again, defendant complains of plaintiffs’ given instruction No. 3, which is as follows:

“If you find the defendant guilty as charged in the Complaint or some Count thereof, it will become your duty to determine from the evidence the damages, if any, Stephen Bobalek, one of the plaintiffs, sustained by reason of the negligence of the defendant as charged in the Complaint or some Count thereof, and in this connection, you may consider, if shown by the evidence, the following:
“1. The condition or state of repair of said automobile immediately before and immediately after the time in question; if said automobile was repaired, the fair and reasonable cost of the repairs, made necessary by the acts of the defendant, to restore said automobile to the same condition as it was just prior to the time in question,
“2. Any and all moneys expended by Stephen Bobalek, or for which he became liable, for reasonable charges for hospital service, medical supplies, doctor bills for services furnished to Frank Bobalek, a minor, that were made necessary to cure said Frank Bobalek of his bodily injuries so sustained by reason of the negligence of the defendant, if any, as charged in the Complaint, and assess such damages, if any, in favor of Stephen Bobalek, one of the plaintiffs, and against the defendant as in your judgment will fairly compensate the plaintiff, Stephen Bobalek, for any damages so sustained by him as shown by the evidence, if any.” A number of objections are urged to the giving of this instruction and the fact pointed out that there are two plaintiffs in the case and two causes of action; that there are six counts in the complaint; that Counts I, III and IV purport to state a cause of action for Frank Bobalek alone, while Counts II, IV and VT purport to state a cause of action for the plaintiff, Stephen Bobalek alone. It is objected that the instruction directs the jury to assess damages for the plaintiff, Stephen Bobalek, if the jury find the defendant guilty as charged in the complaint “or some Count thereof”.; that under this instruction the jury are told to assess damages for plaintiff, Stephen Bobalek, if they find the defendant guilty as charged in Counts I, III or Y thereof, which purport to state a cause of action only for the plaintiff, Frank Bobalek; that under the allegations of the complaint, Frank Bobalek was not entitled to damages at all unless the jury found the defendant guilty as charged in Counts II, TY or YI of the complaint; but that the instruction did not so inform the jury and that it was therefore error for the court to give it.

In reply, the plaintiffs urge that the instruction does not direct a verdict, as contended by defendant, and point out that the instruction, after telling the jury if they believed the defendant guilty as charged in the complaint or some count thereof, in determining any damages Stephen Bobalek sustained “you may consider if shown by the evidence the following. ’ ’ After enumerating the elements of damage which they should consider in arriving at any damages they awarded Stephen Bobalek, the instruction continued “and assess such damages, if any, in favor of Stephen Bobalek . . . as shown by the evidence, if any.’’ And it is urged that an instruction telling a jury they may consider and assess, or may find certain things does not command them to do so, nor direct a verdict, of damages. (Citing Bernier v. Illinois Cent. R. Co., supra.) Counts II and IY stated all the elements for a cause of action against the defendant in favor of Stephen Bobalek, and plaintiffs suggest that the jury show by their respective verdicts, and the answer to the special interrogatory that they understood'the instruction; that they understood there were two causes of action set up in the complaint. They were told by plaintiffs’ instruction No. 1 in which counts of the complaint were the charges of Stephen Bobalek’s claim against the defendant, and what Stephen’s claim was. (Liska v. Chicago Rys. Co., 318 Ill. 570.) And it is urged that this court will presume that the verdict in favor of Stephen Bobalek was based on one of the counts in which the claim of Stephen Bobalek is set forth. (Chicago City Rys. Co. v. Foster, 226 Ill. 288.) The jury were told, by plaintiffs ’ instruction No. 1, of the charges against the defendant to be found in the complaint, and summarized in that instruction, and in the instruction in question the jury were left to determine whether the defendant was guilty as so charged, and if they found him to so be guilty they then were told in the instruction how to determine Stephen Bobalek’s damages. Plaintiffs further state that it is unreasonable to say that a jury may not be told they should consider the state of repair of plaintiffs’ automobile before the alleged damage; that while that is not the only element it is one to be considered ; and that there is no other way by which the jury could determine whether the repairs were necessary. The jury’s award to Stephen Bobalek appears to have been based on the doctor’s bills, the repair bill for the car, and the hospital and surgical bills which the evidence show were necessary and reasonable, to which no objection was made, and the instruction by telling the jury they must determine same by the evidence only meant to the jury that they must believe such damages proven by the evidence. When we carefully consider this instruction, there is no such error as would warrant a reversal of the judgment.

Next we must consider plaintiffs’ given instruction No. 4. This instruction told the jury that they were not required to accept the testimony of a witness as to any facts or circumstances testified to by a witness which the jury believed to be inherently improbable. It is urged by plaintiffs that, naturally, intelligent men would understand that facts, other than improbable facts testified to by the witness, should receive the same credit as any other testimony given. The instruction does not tell the jury to disregard the whole of the witness ’ testimony even though they may believe some of the facts the witness testified to were inherently improbable, as urged by defendant. The effect of this instruction seems to be to tell the jury to regard such part of the testimony as they believed, and we are of the opinion that it was not misleading but informed the jury as to the weight to be given to a witness’ testimony if they believed any part thereof knowingly or wilfully to be false.

As to plaintiffs’ given instruction No. 5, it is urged in support of the instruction that men of average intelligence would understand this instruction only to mean if they found the defendant guilty of the negligence as charged as to each of the plaintiffs that any damages shown by the evidence must be assessed for the respective plaintiffs separately. It would appear that this instruction only instructed the jury as to the manner of treating the respective plaintiffs’ claims. The phrase “sustained by reason of the acts of the defendant as charged” is equivalent to saying if the defendant’s acts were the proximate cause of the injury ór damage. (Central Rys. Co. v. Bannister, 195 Ill. 48.) So, under the circumstances, we are satisfied that the instruction was not erroneous.

As to plaintiffs’ given instruction No. 6, plaintiffs argue that it is not mandatory or directory, and cite West Chicago St. R. Co. v. Scanlan, 168 Ill. 34, where complaint was made of an instruction telling the jury “that if they find from the evidence, that the plaintiff has made out his case by a preponderance of the evidence as laid in his declaration then the jury must find for the plaintiff.” The court there said that “The objection that it is mandatory is without force.” It is urged that the words instructing the jury “that if they believe from the greater weight of the evidence that the defendant was guilty of the negligence charged, and that in consequence of such negligence” etc., referred the jury to the negligence charged in the complaint of which they were told in plaintiffs’ instruction No. 1; that the various counts of the complaint state the necessary elements of a cause of action for each plaintiff’s claim, and by said instruction the jury were told these charges were contained in the complaint; and that the jurors reasonably would only understand by the instruction in question that they must first determine from the evidence whether the defendant was guilty of the negligence as charged in the complaint, and then determine also if the plaintiff, Frank Bobalek, a minor, and Stephen Bobalek, Jr., agent of the plaintiff Stephen Bobalek, were in the exercise of due care, and whether or not the injury and damages were a consequence of the defendant’s negligence as charged in the complaint, and that they must determine from the evidence whether the expenses enumerated, of Stephen Bobalek were reasonable, and customary, and necessary. If they believed all these things to be true from the evidence they were told they should find for Stephen Bobalek. We are of the opinion that this instruction, likewise, is not subject to the objections made by defendant.

Then, as to plaintiffs’ given instructions Nos. 7 and 10, criticism is made by defendant. Instruction No. 7 instructed the jury as to a statute in force in Chicago and Illinois regarding signals to be given by a driver of an automobile when intending to turn left. Instruction No. 10 instructed the jury with reference to the turning of an automobile, or intending to turn without giving a suitable signal to others who might be affected by his turning. Instruction No. 7 is not directory, as contended by defendant. It told the jury to determine from the evidence and instructions whether the defendant turned his automobile from a direct course while the plaintiff’s automobile was in a position where it could be affected, and they were further told to determine from the evidence whether the defendant then and there gave a signal and warning of his intention, and whether or not Frank Bobalek was in the exercise of due care, and further to determine from the evidence whether by reason of the defendant so operating his automobile Frank Bobalek sustained injuries. The instruction is not erroneous.

Plaintiffs’ given instruction No. 8 is as follows:

“If you believe from a preponderance of the evidence that the defendant was guilty of negligence as charged, and in consequence of such negligence as charged, and in consequence of such negligence the plaintiff, Frank Bobalek sustained bodily injuries as charged, and that the plaintiffs, Frank Bobalek and Stephen Bobalek, his next friend, were at, and immediately before, the time in question exercising reasonable care and diligence for Frank Bobalek’s own safety, and the safety of others, and their property, then you should find for the plaintiffs.” It is urged by plaintiffs that the instruction is not directory or mandatory; that it left to the jury to determine from the evidence whether the defendant was guilty of the negligence as charged; and that plaintiffs ’ instruction No. 1 advised the jury of the charges of negligence of the defendant, due care of the driver of plaintiff’s car and of plaintiff Frank Bobalek, of the charges of injury to Frank Bobalek by reason of defendant’s negligence, and the damages of Stephen Bobalek for necessary hospital bills and medical care, etc., found in the complaint. It was left to the jury to determine from the evidence whether these facts were proven, and they were told if they believed these facts proven, then they should find for the plaintiffs. As to plaintiffs’ instruction No. 11, the rule seems to be that it is only when the passenger can be of help, or it comes to his attention that the driver does not see, or cannot see, that negligence may be imputed to the passenger. The jury could observe Frank’s intelligence, experience and could understand the instruction to mean nothing more than that they were to measure his care by the matters stated therein. We are of the opinion, therefore, that plaintiffs ’ given instructions Nos. 8 and 11 are neither of them erroneous.

Upon consideration of all the objections and suggestions made relative to plaintiffs ’ given instructions, and the authorities cited, we are of the opinion that nothing has been called to our attention which would justify a reversal of the judgments entered in this case.

The defendant contends also that the trial court erred in his instructions to the jury concerning the verdicts they might return and in failing to give to the jury proper and sufficient forms of verdict. With reference to the verdicts, the trial court orally instructed the jury as follows: “If you find the defendant guilty as to the plaintiff Stephen Bobalek you will sign this:

“ ‘We the jury find the defendant guilty and assess the damages of Stephen Bobalek in the sum of-’ whatever dollars you may arrive at.
‘ ‘ If you find for the plaintiff Frank Bobalek, a minor, you will sign this verdict:
“ ‘We the jury find the defendant guilty and assess the damages of the plaintiff Frank Bobalek, a minor, by Stephen Bobalek, his next friend, in the sum of-’ whatever dollars you arrive at.
“If you should find the defendant not guilty you will sign this verdict:
“ ‘We the jury find the defendant not guilty.’ ” These three forms of verdicts were the only forms given by the trial court to the jury. The plaintiffs’ contention, in reply to defendant’s suggestions as to the forms of verdict given to the jury, is that it was not the plaintiffs’ theory nor was the case tried on the theory that if defendant was guilty as to Frank Bobalek he was also guilty as to Stephen Bobalek; that the jury were fully instructed by the instructions of plaintiffs as well as defendant that each of the plaintiffs had a claim, and each must prove his claim; that it may have been proper for the court to have submitted an additional form of verdict regarding finding the defendant not guilty as to either plaintiff; but that the omission is not reversible error.

Moreover, the defendant did not request the court to give an additional form of verdict. The plaintiffs further urge, and correctly we think, that treating the instructions as a series it is not conceivable that a jury of average intelligence did not understand that there was a claim of each of the plaintiffs for different damages, Frank Bobalek for injuries, and Stephen Bobalek for doctor bills, hospital bills and expenses furnished to Frank, a minor, and damages to Stephen’s automobile ; that the defendant’s liability for each of said claims was proximately caused by the same acts of negligence of the defendant; and that clearly the jury would have been able to have formed a verdict finding the defendant not guilty as to either plaintiff, had such been their finding, so the defendant could not possibly have been prejudiced by the court’s omission. Under all the circumstances, we are of the opinion that the court was not in reversible error in submitting the forms of verdicts as were submitted in this case.

There are other questions called to our attention but upon consideration of all the questions involved we are of the opinion that there is no reversible error in this record. The respective judgments in favor of plaintiffs will, therefore, be affirmed.

Judgment affirmed.

Burke, P. J., and Kiley, J., concur.


text:
    First National Bank of Chicago, Trustee, Appellee, v. Abraham S. Hart and Maxine Hart Spitz, Appellants.
    Gen. No. 42,102.
    Heard in the third division of this court for the first district at the February term, 1942.
    Opinion filed June 24, 1942.
    Rehearing denied September 18, 1942.
    Rosenthal, Hamill, Eldridge & King, of Chicago, for appellants; Lessing Rosenthal and George W. Gale, both of Chicago, of counsel.
    Mayer, Meyer, Austrian & Platt, of Chicago, for appellees; Herbert A. Friedligh and Louis A. Kohn, both of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the defendants from a decree, entered in the circuit court of Cook county, decreeing that the plaintiff, The First National Bank of Chicago, as trustee of the Max Hart Grandchildren’s Trust, recover from each of the defendants (Abraham S. Hart and Maxine Hart Spitz) the sum of $14,864.47, together with 5 per cent interest from October 8, 1941. The question presented is whether undey the provisions of the will of Rebecca Hart, the plaintiff is entitled to recover from defendants the difference between the inheritance tax nominally assessed against the interest represented by plaintiff and the larger tax nominally assessed against each of the defendants and disregarded by the surviving trustee under the Max Hart will in the distributions made by the trustee pursuant to the provisions of the Rebecca Hart will in the exercise of the power of appointment made by that will. This exercise was made by Rebecca Hart pursuant to the authority granted to her under the will of her husband, Max Hart.

On April 13,1940, The First National Bank of Chicago as trustee of the Max Hart Grandchildren’s Trust, created under section Eleventh of the will of Rebecca Hart, filed a complaint against the defendants, Abraham S. Hart and Maxine Hart Spitz, alleging that upon the distribution of the assets to which the plaintiff was entitled by virtue of the exercise of the power of appointment under the Rebecca Hart will, the plaintiff, as trustee of the Max Hart Grandchildren’s Trust, should have received $23,306.66, more than was distributed to it; that in the distribution made to the defendants, each of them received $11,653.33 more than they were entitled-to receive because of the erroneous allocation and charges made by the executors of the Max Hart will in discharging the liability accruing on account of Illinois inheritance taxes under that will. Defendants filed an answer, setting forth fully the facts in the case. No point was raised on the pleadings, and after the answer of defendants was filed, the cause, on motion of plaintiff, was set down for hearing upon the complaint and answer, and after that hearing a decree was entered in favor of plaintiff.

The facts, as stated in the briefs filed in this appeal, appear to be that Max Hart died testate on February 22,1928. His will was proved and admitted to record by the probate court of Cook county on May 22,1928, and letters testamentary issued thereon to Rebecca Hart and Lessing Rosenthal, as executors thereof. Rebecca Hart, the widow of Max Hart, died on December 29, 1933, and after her death, Lessing Rosenthal continued as sole surviving executor oi the Max Hart will.

Under section Fifth of the Max Hart will the testator, after a pecuniary gift to his wife, and the bequest to her of all his household goods, gave all of the rest, residue and remainder of his estate to three trustees and the survivors and survivor of them, to hold and invest and pay over the entire net income to his wife, Rebecca Hart, and after the death of his wife, to stand possessed of the trust estate and the income thereof in trust for all or such one or more “exclusively of the others or other of my children or remoter issue born or to be born during the life of my said wife, or within twenty-one (21) years after her death, at such age or time, or respective ages or times, if more than one, in such shares, and with such future or executory or other trusts for the benefit of the said issue, or some or one of them, with such provisions for their respective advancement (either in the lifetime of my said wife or after her decease), maintenance, or education, at the discretion of the said trustees or trustee, or of any other persons or person and upon such conditions, with such restrictions and in such manner as my said wife shall, while she shall continue my widow, by deed, with or without power of revocation and new appointment, or in case she shall continue my widow until her death, by will or codicil appoint.”

In default of such appointment, the trustees were, after the death of the wife to stand possessed of the trust estate and were to apply the income thereof for the maintenance, education and support of each child of the testator and the issue per stirpes of any child who may have died prior to such time until the youngest child of the testator living at the death of the wife attains the age of thirty years and at such time to divide and distribute the entire estate and property “then in their possession or under their control” among the testator’s then living children and the then living issue of any child who may have died prior to such time, per stirpes and not per capita, that is to say, the then living issue of any child of the testator then deceased should together take the share which their parent would have taken if living.

Rebecca Hart, widow of Max Hart, never remarried, and after her death on December 29, 1933, her will, dated March 3,1930, was proved and admitted to record in the probate court of Cook county on May 29,1934.

By the Ninth section of her will, Rebecca Hart, pursuant to the powers conferred upon her by the Fifth section of the Max Hart will and in the exercise thereof provided and ordained that from and after her death the trustees or trustee of the trust estate, commonly referred to as the ‘ ‘ Max Hart Residuary Trust ’ ’ created by or existing under the Fifth section of the Max Hart will, should stand possessed of the trust estate and the income thereof, in trust, “for such of the children of the said Max Hart, deceased, as shall survive me and for the descendants living at my death of such child or children of the said Max Hart as may have died previous to my death or shall not survive me but shall have left or shall leave issue of such child or children living at my death, such children and descendants to take per stirpes and not per capita (that is to say, each child of the said Max Hart surviving me to take one share, and the descendants then living of each then deceased child of Max Hart together to take one share and only by representation), expressly subject, however,” to the restrictions, provisions and trusts contained in sections Tenth and Eleventh of her will.

By section Tenth of the will, the Max Hart Stock Trust is created and all the shares of Hart, Schaffner & Marx, which at the death of Rebecca Hart, may belong to the trustees of the Max Hart Residuary Trust, or in which they have any beneficial interest as such trustees, are transferred to three trustees under a special stock trust to hold until January 2, 1940, and to distribute at such time to the beneficiaries and persons designated and appointed by section Ninth of the will; the portion, however, distributable to any descendant of any deceased child of Max Hart, who may have died prior to the death of Rebecca Hart, to be transferred to the trustee of the Max Hart Grandchildren’s Trust, created by section Eleventh of the will and to be received by the trustees as part of the principal or corpus of the trust.

By section Eleventh of the Rebecca Hart will, the portion or shares of the Max Hart Residuary Trust, appointed by section Ninth for the benefit of the descendants living at her death of any child of Max Hart who should not survive Rebecca Hart was to be transferred to the First Union Trust and Savings Bank as trustee to apply the net income to the extent requisite for the maintenance, education and support of the beneficiary, and the trustee was directed at (a) the expiration of twenty years from and after the death of the testatrix, or (b) the arrival prior thereto of the beneficiary at the age of thirty years, or (c) the death of such beneficiary prior to his attaining the age of thirty years and prior to the expiration of twenty years from and after the death of the testatrix, whichever of said three events should first happen, and designated by the testatrix as the “period of final distribution,” the trustee is directed to transfer and convey all the property and estate held for such beneficiary (or the net proceeds thereof) to the person or respective persons entitled thereto under and pursuant to the provisions of the Rebecca Hart will.

The First Union Trust and Savings Bank appointed as trustee of the trust created by section Eleventh and called the “Max Hart Grandchildren’s Trust” was consolidated with the First National Bank of Chicago, and the latter bank, pursuant to the provisions of the Bebecca Hart will, becáme the trustee of the Max Hart Grandchildren’s Trust.

Under section Twelfth of the Bebecca Hart will, all the rest, residue and remainder of her property and estate was given to such of the children of her deceased husband, Max Hart, as should survive her and the descendants living at her death of such child or children of the said Max Hart as may have died previous to her death, or should not survive her, but shall have left or should leave issue of such child or children living at her death, each child of the said Max Hart surviving her to take one share, and “the descendants then living of each then deceased child of Max Hart together to take one share and only by representation.”

The children of Max Hart surviving Bebecca Hart are (a) the defendant Abraham S. Hart and (b) the defendant Maxine Hart Spitz. One child of Max Hart, James M. Hart, died prior to the death of both Max Hart and Bebecca Hart, and left him surviving two children living at the death of Bebecca Hart, namely, James Max Hart, Jr., and Bichard Foreman Hart. James Max Hart, Jr., attained the age of twenty-one years on September 9, 1940. Bichard Foreman Hart will be twenty-one years of age on March 17, 1942.

In the Illinois inheritance tax proceedings, the following net tax (after deducting the discount allowed) was assessed upon the successions of the following persons in the amounts set forth, namely;

Bebecca Hart (the widow of Max Hart). .$242,674.73
Bebecca Hart and Lessing Bosenthal, as Trustees, for the use and benefit of James Max Hart, Jr., the grandson of Max Hart.............$36,348.41
Rebecca Hart and Lessing Rosenthal, as Trustees, for the use and benefit of Richard Foreman Hart........ 36,348.41
Making a total of...................... 72,696.82
Abraham S. Hart, son of Max Hart...... 107,656.81
Maxine Hart Spitz, daughter of Max Hart. 107,656.81 Making the total amount of the net tax.. .$530,685.17

The entire tax was paid out of the funds of the estate of Max Hart by Rebecca Hart and Lessing Rosenthal, as executors of the Max Hart will, and charged to the corpus of the estate. In paying the tax, the executors of the Max Hart will made no specific or express charge against any interest.

Upon the distribution of the trust estate, the surviving trustee of the Max Hart Residuary Trust made equal distributions between (a) the defendant Abraham S. Hart, (b.) the defendant Maxine Hart Spitz, and (e) the plaintiff the First National Bank of Chicago, as trustee of the Max Hart Grandchildren’s Trust.

Passing to the question of the federal estate tax credit the following computations are pertinent:—

The total Federal estate tax assessed against the estate of Max Hart was ...............................$647,810.73
Pursuant to the Federal Statute there was allowed as a credit on this sum the amount of the Illinois inheritance taxes paid, to the extent of 80% of the amount of the Federal estate tax, namely................... 518,248.58
Leaving a balance of Federal estate taxes to be paid of...................$129,562.15

This balance was paid.

On the basis of the foregoing facts, the defendants contend that the interest of the various residuary beneficiaries in the Max Hart Residuary Trust was determined at the death of Rebecca Hart through the exercise .by her of the power of appointment granted to her by the will of her husband; and that that interest could only be determined upon the death of Rebecca Hart, and not before; and that it is clear that under the terms of the Rebecca Hart will the distribution was to be equal as between the three branches, that is to say, each child of Max Hart, living at the death of Rebecca Hart, was to have one share and the descendants together of the deceased child of Max Hart, were to have one share. That there was to be no discrimination, and was to be equal distribution'between the issue of Max Hart, the children of any deceased child together representing the parent.

The plaintiff illustrates the consequence of the distribution made by the surviving trustee by the following chart:

Residuary Legatee
Grandchildren’s Trust Abraham S. Hart Maxine Hart Spitz
Net tax assessed against legacy
$ 72,696.82
107,656.81
107,656.81
$288,010.44
Amount deducted from legacy
$ 96,003.48
96.003.48
96.003.48
$288,010.44

Thus, $23,306.66 was deducted from the grandchildren’s shares to pay taxes assessed against the defendants. We are in agreement with the suggestion offered by plaintiff that under the Illinois Inheritance Tax Act each beneficiary must pay the tax assessed against his gift. In People v. Varel, 351 Ill. 96, the Supreme Court stated that “An inheritance tax is a tax upon the right to succeed to property. It should be assessed only on the beneficial interest passing to the heir, devisee or legatee from the decedent,...” And again in People v. Estate of Strom, 363 Ill. 241, it is stated: “. . . It is the right to receive the property by descent or devise which the state taxes. The estate itself is not taxed. . . .” Then in the case of People v. Union Trust Co., 255 Ill. 168, the court said; ‘ ‘... It was the intention of the legislature in this State that a person should he taxed only on the beneficial interest which he receives. It is not a tax on the estate but on the right to receive a portion of the estate. Such is the law generally....” The fact that the lien of the tax in favor of the state is “limited to the property chargeable therewith,” and does not extend to the whole estate (section 24, Cahill’s Ill. Rev. Stat. (1927), ch. 120, par. 418) clearly indicates the nature of the tax. Applying the applicable rules to the present case, we find that the Illinois inheritance tax is a tax upon the right of succession, and further, that the estate itself is not taxed; and that the tax is upon the right to receive a portion of the estate.

On the question of when the inheritance tax is to be deducted, section 4 of the Illinois Inheritance Tax Act (Cahill’s Ill. Rev. Stat. (1927), ch. 120, par. 399) provides :

“Any administrator, executor or trustee having any charge or trust in legacies or property for distribution subject to the said tax shall deduct the tax therefrom, or if the legacy or property be not money he shall collect a tax thereon upon the appraised value thereof from the legatee or person entitled to such property, and he shall not deliver or be compelled to deliver any specific legacy or property subject to tax to any person until he shall have collected the tax thereon; ...” Therefore, the tax assessed against each gift must be deducted therefrom before distribution, and the tax on one gift cannot be deducted from another gift to another beneficiary. As stated in People v. Union Trust Co., 255 Ill. 168;
“Under our law the administrator or executor or trustee cannot retain out of the property that comes into his hands, as a gross amount, the entire sum of the inheritance taxes imposed. That law intended that a person should be taxed only on the beneficial interest that he received, (People v. Nelms, supra,) and the administrator or executor can only retain from any legacy the inheritance tax due on that legacy.”

Therefore, it would appear from the suggestions and authorities offered that the tax assessed should have been deducted' from the gift of each person, and that the sum of $23,306.66 was improperly deducted from the grandchildren’s shares and applied to inheritance taxes assessed against defendants’ shares. Such deduction was not in accordance with the statute and cases cited. The share of each beneficiary must pay its own tax. Here, the trustee divided the residue in shares (which were subject to different rates of tax) and made distribution in three equal parts, one to each of the two defendants and one to the plaintiff as trustee for the benefit of the two grandchildren. Thus, each share did not pay its own tax, but rather the defendants’ shares were added to, to the extent of $23,306.66, at the expense of the share of the grandchildren (who had the lower tax rate).

We might add that section Fourth of the Max Hart will provides that certain specified bequests and legacies “in the preceding sections of this my will given” should be received free of inheritance taxes and that the taxes assessed against such gifts be paid out of the residue or general estate as expenses of administration. It is to. be noted that the application of this section is limited to taxes on gifts given in “preceding sections”; the clause disposing of the residue (section Fifth) did not precede this section but followed it. Section Seventh of the Rebecca Hart will is in similar language. It too provides that specific gifts given in “preceding sections”, of the will be given undiminished by inheritance taxes, and that the taxes assessed against such gifts be charged to the general estate. The clauses exercising the power of appointment over the Max Hart residue (section Ninth) and disposing of the residue of the testatrix’ own estate (section Twelfth) follow this section Seventh. It would thus seem apparent that both decedents were aware of the rule that every gift normally bears its own inheritance tax. Each expressly, directed that the rule should not apply to certain nonresiduary gifts, but said nothing whatever about residuary gifts; and the conclusion is inescapable that both decedents, while desiring that the nonresiduary gifts should be paid free of tax, intended that each residuary gift should bear the inheritance tax assessed against it.

Defendants attempt to apply the maxim that equality is equity, and insist that the three “Stirps” of Max Hart should therefore assume an equal portion of the total residuary tax burden, even though the grandchildren’s taxes were smaller than defendant’s taxes. The reply made by plaintiff is that the 11 stirps ’ ’ are not the beneficiaries here; that the taxes were assessed, not against the “stirps,” but against the individual legatees, and it was to these individuals, not to the “Stirps” that the residue was appointed; and that on the contrary, the share of each defendant was twice as large as that of either grandchild, thus rendering the maxim totally inapplicable.

It is the further contention of defendants that there is no connection between the tax assessed against them and the shares ultimately received by them. They point out that the tax assessment preceded the exercise of the power of appointment and imply from this that plaintiff cannot now complain of the diversion in question. The fact remains, however, that the residue was appointed to the same persons and in the same proportions as contemplated by the tax assessment. Each defendant was taxed on one third of the residue and each in fact succeeded to one third of the residue; each should, therefore, pay the tax on what he or she received. Considering equitable maxims, they must be considered in the light that plaintiff ought not to be required to pay more than the tax legally assessed against the shares of the grandchildren. Assuming for purposes of illustration that the physical assets of the Max Hart residuary trust estate had a value at the date of Rebecca Hart’s death of $3,000,000, the total residuary estate, divisible among the four beneficiaries, would be as follows:

Physical assets....................-$3,000,000.00
Claim against Abraham S. Hart..... 107,656.81
Claim against Maxine Hart Spitz... 107,656.81
Claim against James Max Hart, Jr... 36,348.41
Claim against Richard Foreman Hart. 36,348.41
Total............$3,288,010.44

Plaintiff’s contention, as above suggested, as to the division and charges which should have been made is that one third of the total residuary estate, pursuant to Rebecca Hart’s appointment, would in the first instance be distributable to Abraham S. Hart, or $1,096,003.48; one third thereof or $1,096,003.48 to Maxine Hart Spitz; and one third thereof or $1,096,003.48 to plaintiff, as trustee for the grandchildren. That the trustee of the Max Hart Residuary Trust was entitled to deduct however under section 4 of the act above quoted, the inheritance taxes previously paid on behalf of each of the distribu-tees. Thus, it is urged, there should have been deducted from each of the defendants’ shares as computed above the sum of $107,656.81, and from the share of the grandchildren the sum of $72,696.82, and adjustments made accordingly. The resulting distribution to plaintiff as trustee for the grandchildren would thereby exceed the distribution to each of the defendants herein by the sum of $23,306.66, and to that extent, we agree that the defendants have been enriched at the expense of the grandchildren. From these computations it appears that there should have been added the sum of $23,306.66 to the amount which was distributed to the plaintiff as trustee under the Max Hart Grandchildren’s Trust.

There are further suggestions offered along the line of computations, but we have reached the conclusion that the court justly decreed that the defendants have been unjustly enriched by the amounts which they have improperly received and retained at the expense and to the detriment of the Max Hart Grandchildren’s Trust, as a result of the erroneous allocation of the burden of inheritance taxes; and that in equity and good conscience defendants should account therefor to plaintiff. The decree will, therefore, be affirmed.

Decree affirmed.

Burke, P. J., and Kiley, J., concur.