text:
    Thomas D. Collins et al. v. John M. Pratt et al. Logan L. Mullins and George D. Crowley, Receivers of Association of Real Estate Taxpayers, Appellees, v. Appeal of Ferre C. Watkins and Perry J. TenHoor, Individually and as Partners, Trading as Watkins & TenHoor, Appellants.
    Gen. No. 37,225.
    Opinion filed February 7, 1934.

      Barthell & Rundall, for appellants; Charles O. Rukdall and Theodore C. Biller, of counsel.
    John C. Melaniphy, for appellees.
   Mr. Justice Hebel

delivered the opinion of the court.

This cause is in this court upon an interlocutory appeal from an injunction order entered on October 6, 1933, restraining the defendants, Ferre C. Watkins and Perry J. TenHoor, individually and as partners under the name of Watkins & TenHoor, from enforcing two judgments obtained in the municipal court of Chicago and from proceeding to trial in one of these causes where leave had been given to the defendants therein to appear and defend.

The original bill of complaint was filed on February 14, 1933, by seven directors and the Association of Real Estate Taxpayers, as complainants, to restrain six of the remaining seven directors as defendants from participating in or calling a meeting of the members of the Association, to restrain the defendants Messrs. Pratt and Stover from performing their duties as president, secretary and treasurer, respectively, of the Association, and to restrain its directors from making radio broadcasts for the Association, from holding or taking possession of the assets of the Association; to cancel a contract with defendant Pratt as general manager of the Association, and for the appointment of a receiver for the Association.

The issues raised by the bill of complaint and the cross-bill and the answers thereto, and the supplemental bill filed by the complainants on September 21, 1933, are now pending. In the supplemental bill of complaint, Ferre C. Watkins and Perry J. TenHoor were named as additional parties defendant, both as individuals and as partners, doing business as Watkins & TenHoor.

On the same day that the supplemental bill was filed, the court, without notice and without bond, entered an order restraining the defendants Watkins and TenHoor from proceeding to trial in the municipal court of Chicago, in cause No. 2766401, and from enforcing two judgments entered against the Association of Beal Estate Taxpayers. The defendants before this court filed a motion to dissolve this injunction.

On September 23, 1933, an order was entered in the superior court of Cook county appointing Logan L. Mullins and George Crowley receivers to collect the assets and property of the Association of Beal Estate Taxpayers. The receivers qualified by each filing an individual bond in the sum of $25,000, which bonds were approved and ordered filed by the court.

On October 2, 1933, the receivers filed their petition for a restraining order against the defendants Watkins and TenHoor to enjoin them from taking further action in the prosecution of suits, and from attempting to enforce the judgments entered in the municipal court of Chicago against the above named Association, of which the petitioners are the receivers, by a levy upon the assets of said Association until the further order of the court.

On October 6, 1933, an order was entered, in part, as follows:

“It is ordered that the injunction order heretofore entered herein on September 21, 1933, on said Ferre C. Watkins and Perry J. TenHoor, restraining said parties from proceeding on said judgments in the Municipal Court of Chicago until the further order of court, be dissolved, and the order of September 21st, 1933, is hereby dissolved, vacated and set aside.” On the same day a further order was entered, which is substantially as follows:

“The matter coming on to be heard upon the verified petition of Logan L. Mullins and George Crowley, receivers heretofore appointed and qualified to take possession of the assets of Association of Beal Estate Taxpayers, an Illinois corporation, and administer the estate of said Corporation under the direction of this court, and due notice having been had, and the court having considered said petition and having heard arguments of counsel. . . .

“It is ordered that a writ of injunction issue and that said Ferre C. Watkins and Perry J. TenHoor, individually and as partners under the name of Watkins & TenHoor, and each of them, their agents, servants, employes, solicitors and attorneys, be and they hereby are enjoined and prohibited from proceeding with the trial in the cause of Ferre C. Watkins and Perry J. TenHoor v. Association of Beal Estate Taxpayers, pending in the Municipal Court of Chicago, cause No. 2766401, and from enforcing or attempting to enforce any judgment therein rendered, including a pending garnishment proceeding against the Northern Trust Company, based thereon, and from issuing or levying execution upon said judgment or upon a certain judgment rendered in the case of Ferre C. Watkins and Perry J. TenHoor v. Association of Beal Estate Taxpayers, in the Municipal Court of Chicago, in cause No. 2766814, and from instituting any other proceeding or proceedings in their own behalf against the Association of Beal Estate Taxpayers, until further order of this Court.”

The petition of the receivers filed by leave of court sets forth in substance that Watkins and TenHoor filed a suit in the municipal court of Chicago against the Association on the 16th day of May, 1933, in cause No. 2766401, wherein Watkins and TenHoor sought to recover a balance on an alleged contract for attorney’s fees, and caused summons to be issued, which was served on May 16, 1933, by delivering a copy thereof to James E. Bistor, one of the defendants in the above entitled cause, and the president of the Association; that Bistor was not served at the offices of the Association, but was served by a bailiff of the municipal court of Chicago, according to direction, at his private office; that on the 25th day of January, 1933, by resolution adopted by the board of directors of the said Association, Bistor was suspended as president, and, by an order entered in the above cause was enjoined from acting as president of the said Association; that Ferre C. Watkins and Perry J. TenHoor conspired with Bistor to cause said suit to be filed and service to be made upon Bistor, and default to be made in order that judgment might be entered in favor of Watkins and TenHoor by default, and thereby enable the defendants to wrongfully and improperly secure part of the assets of the Association of Beal Estate Taxpayers; that default was entered against the Association of Beal Estate Taxpayers in said cause on the 31st day of May, 1933, and judgment was entered in the municipal court of Chicago in favor of Ferre C. Watkins and Perry J. TenHoor for $19,-079.16 and costs, which judgment was entered without notice or knowledge of the Association, and the Association only learned of the entry of the judgment on the first day of June, 1933, when it was informed by "the Northern Trust Company that the Trust Company had been served with garnishee summons; that upon entry of the default judgment, Watkins and TenHoor caused execution to be issued, and at their request to be returned unsatisfied by the bailiff of the municipal court of Chicago, and immediately caused garnishment proceedings to be instituted and garnishee sum- ■ mens to be served; that the Association had on deposit in its name $18,098.28 with the Northern Trust Company ; that thereafter the complainants in the original proceedings filed a petition in the municipal court of Chicago to vacate the judgment and for leave to defend, and on July 19, 1933, leave to defend was granted, and that the petitioners believe that the Association has a good defense.

It is further stated in the petition that the petitioners are now acting as receivers, seeking to preserve the assets of the Association; that petitioners oppose the position of said Watkins and TenHoor that they are entitled to attorney’s fees or any sum in addition to the $154,100 already received by them as fees, and the defendants knowing that the officers of the corporation could not function, did on the 10th day of July, 1933, file another suit in the municipal court of Chicago against the Association in Case No. 2766814 for legal services alleged to have been performed from March 1, 1933, to June 16, 1933, for the sum of $19,000 and caused summons to be issued and served upon Henry Hedberg, director and vice president of the Association, said service being made at the office of the private business conducted by the said Henry Hedberg; that Hedberg failed to notify any of the parties to this suit or any of the officers or directors of the Association, of the pendency of said suit, and thereafter on the 25th day of July, 1933, said Watkins and TenHoor secured in said cause, by reason of the default of the Association, a judgment in the sum of $19,000 and costs; and that the-Association has a defense. The defense is fully stated in the petition.

A demurrer was filed on October 13, 1933, by the defendants Watkins and TenHoor, to the bill of complaint and the supplemental bill filed herein.

The defendants before this court suggest that the order appointing the receivers is void for the reason that in the absence of statutory authority, courts of equity have no power to dissolve corporations or to appoint receivers therefor, as prayed for in the supplemental bill. In the consideration of this question the pleadings are material, and of necessity the bill of complaint, the supplemental bill of complaint which submits facts "that accrued subsequent to the filing of the bill of complaint, and the cross-bill, all of which will only be considered by the court upon this appeal, in order to determine from the facts stated whether the chancellor' was without jurisdiction to enter the order appointing the receivers.

Upon final hearing, the chancellor may not grant all the relief asked for, but it is the practice for the chancellor to grant such relief as equity requires, and the fact that relief is asked for and granted only in part does not deprive the chancellor of jurisdiction. To confine the court to the pleadings to the extent that because part of the relief prayed for is not justified by the evidence and legal principles and therefore necessitates a dismissal of the bill, would work an injustice, when it appears that the party complaining is entitled to some relief as prayed for in his bill. In this case, the appointment of the receivers with power to care for and preserve the assets of the Association was warranted by the pleadings. Merrifield v. Burrows, 153 Ill. App. 523.

The defendants base their contention upon the supplemental bill of complaint. The bill of complaint prays for the appointment of a receiver. Upon the facts charged, the court would be warranted in making the appointment. Counsel for the respective parties have fully argued the case upon its merits. This court upon an interlocutory appeal will consider only the order appealed from and determine from the record whether the court had jurisdiction of the parties and the subject matter, and was warranted in entering the order appointing the receivers.

In this case it fully appears that the order for the appointment of a receiver was at the request of all the parties — complainants and defendants — except the defendants Watkins and TenHoor, who, however, were present in court.

The necessity of preserving the assets of the Association is apparent from the pleadings. This court is not prepared to pass upon the merits of the controversy; that is for the trial court. It is the duty of this court to determine from the whole record whether the order was properly entered.

The final question to be determined is: Did the trial court err in entering the restraining order of October 6, 1933, without requiring bond in double the amount, of the judgments enjoined? Cahill’s Ill. Rev. St. ch. 69, ¶ 8, upon the question of furnishing a bond in a case of this character., provides, in part, as follows :

“Before an injunction shall issue to enjoin a judgment, the complainant shall give bond to the plaintiff therein, in double the amount of such judgment, with sufficient surety approved by the court, judge or master, conditioned for the payment of all moneys and costs due to the plaintiff in the judgment, and such damages as may be awarded against the complainant in case the injunction is dissolved.”

The order before this court upon appeal does not provide for a bond, and it appears that the order entered excuses the receivers from giving any bond, and finds that the bond is not required by law.

The first observation to be made from an examination of the statute is that where a judgment is enjoined, the complainant shall give bond to the plaintiff in the action in double the amount of the judgment. Strictly speaking, the receivers herein are not complainants, but as officers of the court seek to preserve the assets of the Association of Real Estate Taxpayers, which were in danger of being sequestered by the appealing defendants upon execution issued at their direction to collect the judgments entered in the municipal court. The receivers have no personal interest which would obligate them to pay the judgments in favor of the defendants, but being officers of the court and obligated to protect the assets of the Association against seizure they called the attention of the court to the acts that have taken place, and thereupon the court enjoined the defendants from further proceeding in the collection of the judgments. The court under such circumstances will protect the receivers from the acts of persons interfering with their possession of the assets, the.subject matter of this litigation, and the court will prevent impairment and defeat of the just exercise of its undoubted jurisdiction to protect and enforce its lawful orders and to preserve the title made by it under these orders, and the statute requiring bond has no application. Swift v. Black Panther Oil & Gas Co., 244 Fed. 20; Phoenix Foundry & Machine Co. v. North River Const. Co., 33 Hun (N. Y.) 156. 32 Corpus Juris, page 311; 53 Corpus Juris, page 113. In the Phoenix case the following pertinent statement is made in reference to a restraining order, which statement is applicable to the case before us:

“An order of that nature, being for the protection of the fund which the court has in its possession through its receiver, is not subject to every provision of the statute and of the rules of court which apply to injunction orders granted upon the application of a party for the protection of his individual rights. It is properly made in the action in which the receiver is appointed, and a creditor who attempts to interfere with the fund by unnecessarily subjecting it to the costs of an action to enforce his claim, cannot set up that order is ineffectual as to him because not made in his own action. If there are controversies to be litigated, or accounts to be adjusted, between such creditor and the corporation, all can be done on the investigation of the claim in the winding up suit, and the creditor is a party to that suit, through his representative, the receiver. In short, the order is made in the exercise of the inherent power of the court to protect its receiver and the fund in his hands, and is not a creature of the Code. ’ ’

In further support of the rule referred to in our opinion, we quote from the case of Swift v. Black Panther Oil & Gas Co., supra, as follows:

“But the restraining order and injunction in this' case were issued by the court below, in lieu of proceedings for contempt of that court, to prevent the impairment and defeat of the just exercise of its undoubted jurisdiction to protect and enforce its lawful orders and to preserve the title made by it under them. The unlawful interference of Mr. Swift with the enforcement of the just orders and the preservation of the lawful titles made by the court below was a contempt of that court, and, if continued, might well have been punished as such. The issue of the injunction was but a milder method of protecting its jurisdiction, orders, and titles from unlawful impairment. There is nothing in section 18 to indicate, and, until that intention is clearly expressed, it cannot be presumed that the Congress intended thereby to limit or condition in any way the power of the federal court by means of its injunction, any more than by means of proceedings for contempt, to preserve and protect its jurisdiction, acts or titles from unlawful impairment or destruction. . . . Moreover, Mr. Swift has sustained no loss or injury from the absence of the bond, for the condition of it would have been to pay such costs and damages as he would have suffered if he should be found to have been wrongfully enjoined or restrained, and he is found to have been rightfully enjoined and restrained. If now this court were to reverse the order and decree for the injunction, that act would be a futile one, for, in view of the opinions of the court below and of this court, the former would undoubtedly immediately issue another like injunction.”

This court in passing upon the question of failure of the court to require a bond in a somewhat analogous case, held that where the court, on appeal, approves the order for an injunction, the failure to require bond is not harmful. Walker v. Kersten, 115 Ill. App. 130. The statute provides that the condition of the bond shall be the payment of all moneys and costs due to the plaintiff in the judgment, etc., in case the injunction is dissolved, and the court in the case of Walker v. Kersten, supra, said:

“Finally, it is contended that the order appealed from is erroneous because the complainant did not give bond to the adverse party as required by section 1 of the Act of 1903, ‘ concerning the appointment and discharge of receivers, ’ nor was any cause shown why a receiver ought to be appointed without such bond. In this we think the court erred. But the error was not harmful. The statute provides that the complainant shall give a bond to the "adverse party conditioned to pay all damages, etc., ‘in case the appointment of such receiver is revoked or set aside. ’ Hurd B. S., ed. 1903, p. 231. The case was a proper one for the appointment of a receiver. The order appointing a receiver, therefore, will not be set aside or revoked, and there could be no recovery by appellant on the bond if one had been given.”

The receivers appointed by the court are only seeking to protect the assets of the Association, and, in passing the statute, it was not the intention of the legislature to- require the receivers, appointed to take possession of and preserve the assets of a person or a company, to give a bond in double the amount of the judgment, in order to prevent a levy upon the assets in the hands of the receivers.

We have considered the questions involved in this litigation, and do not find that there is any error which would justify a reversal of the order entered by the trial court and appealed from by the defendants Watkins and TenHoor. The order is accordingly affirmed.

Order affirmed.

Hall, P. J., and Wilson, J., concur.


source: Caselaw Access Project

author: Mr. Justice Wilson

license: Public Domain

text:
    Orlean Liston Brown Johnson et al., Appellees, v. First Union Trust and Savings Bank, as Executor and Trustee Under the Last Will and Testament of William L. Brown, Deceased, et al., Appellants.
    Gen. No. 36,337.

      Opinion filed February 7, 1934.
    Rehearing denied February 26, 1934.
    John B. Cochran, Royal B. Cushing, Ashcraft & Ashcraft, Bosenthal, Hamill & Wormser, Butler, Pope, Ballard & Elting and Tenney, Harding, Sherman & Rogers, for appellants; Willard L. King and Thomas E. Fisks, of counsel.
    Kirkland, Fleming, Green & Martin, Taylor, Miller, Busch & Boyden and Urion, Drucker, Bishop & Boutell, for appellees; Weymouth Kirkland, Francis X. Busch, Howard Ellis, Jay Fred Beeve and Preston Boyden, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

This is an appeal from a decree of the circuit court entered upon the verdict of the jury in a will contest case involving the will and two codicils executed and published by the testator, William L. Brown.

The bill charges that the testator was mentally incapable of executing the instruments in question and also that he was in a weakened mental and physical condition as the result of taking drugs and that the will and codicils were executed by the testator under the dominating influence of certain individuals who had entered into a conspiracy to obtain his property.

The will was executed at Chicago, Illinois, May 31, A. D. 1919, shortly after the death of his wife. He left no child nor lineal descendant.

The contestants are:

Helen Louise Brown, a half sister, and a legatee under the will to the amount of..............$25,000 Arthur Hintze, the surviving husband, and Jane Hintze, the daughter of Mary Brown Hintze who was in turn the daughter of Hiram Liberty Brown, a brother' of the testator. Mary Brown Hintze has died since the starting of the litigation and her heirs have been substituted. They are legatees under the will to the extent of...............................$25,000

George Drew Brown, age 83 years, a brother and non compos mentis, appearing by Helen Louise Brown, as guardian, who was to receive the income for life on a trust fund under the will to the amount of... $25,000 Upon the death of George Drew Brown the principal amount of this trust fund was to go to Claribelle Rice, a daughter of the contestant Helen Louise Rice.

Walter H. Brown, a half nephew..........$10,000

Bessie Brown, wife of Walter H. Brown....$10,000

William Brown Winslow, a grandson of Helen

Louise Rice ................................$1,000

Orlean Liston Brown Johnson and Delia Brown Wentz, granddaughters of Henry Martin Brown, a half brother...............................nothing

Kate M. Northcott Graves, daughter of Isabelle Jane (Brown) Northcott, a sister of the testator, concerning whom he said in the codicil of January 30, 1928: “My sister, Isabelle Jane (Brown) Northcott of Luray, Virginia, having died and her heirs having been amply provided for, I hereby revoke, cancel and annul the provisions made in my said will dated May 31, 1919*.” ................................nothing

In addition to the amounts provided in the will, the testator from time to time prior to his death made frequent gifts to his next of kin and provided for and paid the expense of the education of some of the younger members of his collateral family. These gifts appear from the letters of the testator and the diary kept by him during the course of his life. In one of the letters dated July 15, 1919, it appears that he had made loans from time to time to Walter Brown, aggregating approximately $10,000, and was canceling the indebtedness and making him a gift of that amount. It also appears that he gave him money at different times to start in business and from an entry in his diary dated July 18, 1922, testator made a gift to the said Walter Brown in the amount of $7,000 with which to purchase a home. Another entry shows a gift to this legatee of stock of the value of $17,600. For his incompetent brother, George Drew Brown, during his lifetime he created a trust of approximately $40,000 and upon the default of certain bonds belonging to the trust fund, other securities were substituted by the testator and the trust made good. His diary shows a gift in 1921 of stock in the amount of $11,000 to his half sister Helen Rice who took care of his demented brother George Drew Brown, but this care seems to have been provided for out of the trust fund created. After the provisions for the contestants, already referred to, the balance of the estate was distributed among the proponents, as follows:

Presbyterian Hospital ...................$75,000.00

Chicago Memorial Hospital............... 35,000.00

Evanston Hospital Association........... 20,000.00

Glenwood Training School................ 10,000.00

Chicago Orphan Asylum................. 10,000.00

The Home for Destitute Crippled Children. 10,000.00

The Country Home for Convalescent Children ................................. 10,000.00

The Orchestral Association of Chicago.... 10,000.00

Rollin T. Woodyatt “to be used by him in research work or for such other charitable purpose as he may elect”............... 35,000.00

Rollin T. Woodyatt, Individually.......... 10,000.00

Charles D. Ewer, the testator’s secretary.. 5,000.00

Frank Phillips, the testator’s chauffeur.... 5,000.00

Harriet Seymour Carscallen, a niece, of testestator’s wife............All household furniture and personal effects.

First Trust and Savings Bank of Chicago, as Trustee, to pay the income for life to Harriet Seymour Carscallen, and upon her death to divide the principal among the charitable legatees previously mentioned in proportion to the amounts specified in the will, all the rest and residue of the estate.

Prior to the execution of the will in May, 1919, the testator had been in active business in the City of Chicago and had built up a reputation as one of the outstanding men in the Chicago district. He was one of four men who organized the original partnership of Pickands Brown & Company. The other three men were Henry S. Pickands, Samuel Mather, and J. C. Morse, all of Cleveland, Ohio. Subsequently, the Cleveland members of the firm dropped out of the organization and Charles P. Wheeler, and Charles T. Boynton, both of Chicago, became associated with the testator in the company under the name of Pickands Brown & Company. This partnership continued for several years and, on January 1, 1904, an agreement was entered into between the parties to that partnership, under which it was agreed that a corporation was to be organized under the laws of the State of West Virginia to take over the property of the partnership and to distribute the stock. Of this stock the testator received 5,548 shares, Wheeler 5,250 shares and Boynton 4,200 shares. One share each was also allotted to two othér persons whom it is not necessary to mention. It was provided in the agreement that none of the partners should sell or dispose of his stock until he had first offered it to the other parties to the agreement on terms as favorable as it could be sold to other parties, but not to exceed the book value of the stock. It was also mutually agreed that the agreement should extend to and be binding upon the heirs and legal representatives of the parties thereto.

Considerable stress has been laid upon the fact in the argument of counsel for contestants that Wheeler was instrumental with others in procuring and bringing about the making of the will in the manner in which it was done, because of his interest in the stock and his efforts to procure the same. We have referred to this agreement executed in 1904 in order to show that the arrangement with regard to the stock was in the minds of all the parties long before the making of the will and that it was intended to keep and maintain the corporation as a close corporation for the benefit of the original parties and their families. The firm was a personal service corporation doing a commission business. Its success was dependent upon the personal efforts and the business relationships of the three individuals constituting the corporation. In addition to his interest in the firm of Pickands Brown & Company, the testator was interested in other companies including the American Ship Building Company, of which he was an officer for a number of years; the Federal Furnace Company and the Embree Iron Co, whieh owned and operated a blast furnace in Tennessee. He was also at one time connected with the By-Prodncts Coke Oven Company whose output was sold through the Pickands Brown & Company. The testator appears also to have been interested in the organization of the Steel and Tube Co. of America, which included certain properties such as the Marks Company at Indiana Harbor and the Iroquois Iron Co.

In 1919, at the time of the making of the will, Brown’s estate was estimated at around $1,000,000, and at the time of his death it was worth approximately $2,000,000. What it is worth now is problematical.

In 1919, he was maintaining his home and residence in Evanston, Illinois, but spending a large part of his time in California and had practically retired from business. While not actively engaged in the affairs of Pickands Brown & Company, he was, however, receiving a salary of $50,000 per year in addition to the dividends on his stock.

In 1921, an agreement was entered into between the testator, Wheeler and Boynton, under which the latter-acquired an option to purchase the stock of the testator at $100 per share within a certain fixed time after his death. As a part of the agreement and as a further consideration for its execution, it was agreed that the testator was to receive a yearly salary of $25,000 for five years. This salary was not mentioned in the contract, but was in fact paid. In 1928, testator sold the balance of his stock at a price of $100 a share to his associates in the Pickands Brown & Company and in addition to that' his associates, purchasers of the stock, agreed to pay him a salary of $12,000 a year so long as he lived.

It is urged for our consideration that Wheeler and Boynton had procured the stock at a price below its book value and that this was accomplished because of the domination of these two individuals with others over the testator. We have no means of knowing or ascertaining at this time what the present value of the stock is but in view of the fact that, within a very short period of time after the final sale of this stock by the testator to his associates, the financial crash occurred and the period of depression began, we might well come to the conclusion that the testator was not over-reached in the deal. So far as this record discloses it is practically conceded that, up to the first of May, 1919, the testator was not only a man in full possession of all his mental faculties, but that he was exceptionally well qualified as an executive and a man of business.

In April, 1919, the testator and his wife were staying at the Hotel Del Monte in Monterey, California. Mrs. Brown had been an invalid for several years prior to this time and was only able to get about with the help of a wheel chair. At that time the testator was subject to bronchial asthma and about the 19th of that month he contracted a bad cold which developed into pneumonia. He became rapidly worse and ran a temperature of about 103 degrees the first few days and later developed a severe case of hiccups which was practically uncontrollable. At this time he was given digitalis to strengthen the heart action, and was being attended by Dr. Teaby, the house physician. Boynton, testator’s associate in the Pickands Brown & Company, made arrangements with the Southern Pacific Railroad Company, as a result of which, two private cars were provided for the purpose of bringing testator and his party to Chicago. Accompanying him on the train were Mrs. Brown, Boynton, Albert Day, president of the Presbyterian Hospital, Dr. Fuller, a physician of Chicago, Mrs. Fuller, Benjamin F. Wright and M. McMenamin. In addition there were two professional nurses, Mrs. Brown’s maid and the chauffeur Frank Phillips. In the course of the trip Mrs. Brown died suddenly of a heart attack. The train arrived in Chicago on May 4th and the testator was taken immediately to the Presbyterian Hospital. At this time he was very weak and unable to do very much talking and part of the time his mind was rambling. After May 6th, his temperature was normal, and he conversed with those around him sanely and coherently. The attending physician was a Dr. Koessler, who has since died, and the interne at the hospital was Dr. Raymond Thompson who had charge of the patient under the charge of the directing physician. The testator was discharged from the hospital on June 3, 1919. According to the hospital records and the testimony of the interne Thompson, the testator was not running any temperature after May 5th and the digitalis, a preparation used to strengthen the heart, was discontinued on May 23rd. From the hospital records it appears that there had been a prescription for Mr. Brown on May 7th, of 10 heroin tablets of 1/24 grain each. Thompson testified in regard to this that it was the only narcotic prescribed and that the patient would not have received more than 10 tablets of 1/24 grain each without having another written order; that this was an absolute rule as it was covered by the narcotic law; that the patient could not have received more than 10 tablets during his stay in the hospital, and may not have received all of that number and, in his opinion, it was far from enough to produce a habit. We speak of this at this time because it is upon this prescription and the testimony of the nurse McPhaden, that counsel for the contestants base their argument that he was rendered mentally incapable of resisting the dominating influence of others — this on the assumption that the testator continued the use of such drugs during his stay in the hospital and after leaving it.

According to the allegations of the bill the testator in 1919 was 77 years of age and had suffered from violent attacks of asthma; that to counteract the effects of these he had been given large doses of morphine and other drugs; that he suffered delusions and hallucinations as to his relatives and, by reason of a weakened will power, easily became susceptible to influence which he was unable to resist; that the death of his wife about this time, together with the administration of drugs and narcotics, affected his mentality so that he was deprived of his free will; that prior to 1919' he was a habitual user of strong liquor and stimulants; that he was removed as manager of Pickands Brown and was unable to comprehend the nature and extent of his property; that he did not know who were the natural objects of his bounty; that for many years Mrs. Carscallen was attentive to decedent and a woman of dominant will power and personality; that she persuaded testator to dispose of his residence in Evans-ton and move to California and live with her, which he did; that the same Mrs. Carscallen took complete charge of the testator in the hospital and excluded the complainant and the brothers and sisters of the testator and close friends from conversing with him. The bill further charges that Wheeler and Boynton, his business associates, dominated the testator and with Mrs. Carscallen obtained his complete trust and confidence and thereby created a fiduciary relationship between the testator and each of them.

In the beginning it is well to clear up certain allegations of the bill. There appears to be no evidence showing that the testator was, prior to 1919, a habitual user of strong liquor nor is there testimony to the effect that - he had been using morphine or other drugs and narcotics. There is no testimony to the effect that Mrs. Carscallen or others prevented complainant or testator’s brothers and sisters or his friends from seeing or conversing with him while he was in the hospital iii 1919. The testimony, so far as the record discloses, shows that during the entire time he was in the hospital he was visited by his relatives and, in fact, his chauffeur was sent to bring them. He was also visited by a number of friends, many of whom testified at the trial.

The original will was executed at the hospital, May 31, 1919. The first codicil was executed January 28, 1925, at Pasadena, California. The second and last codicil was executed January 30, 1928, at Pasadena, California. Prior to the execution of the will of May 31, 1919, the testator had executed a codicil to his will while in the hospital which was witnessed by the witness McPhaden and nowhere in the proceeding has she expressed an opinion as to the mental capacity of the testator. This codicil is not in the case, however, as it was supplanted by the will executed May 31, 1919.

In order to consider the execution of the will and codicils logically, we deem it advisable to consider the facts with reference to the execution of each of the instruments separately.

The will provided that Wheeler and Boynton, his partners, would have the right to purchase his stock within six months after his death at the book value of the stock on the date of the sale and that a certificate be signed by these two and filed with the executor which should be taken as to the book value of said stock and should be final. The will also provided that after the payment of legatees, expenses, etc., the residue should go to Harriett Seymour Carscallen, a niece of his deceased wife. Ten thousand dollars was to go to Dr. Rollin T. Woodyatt, whose mother was a first cousin of testator’s wife. From the facts it appears that Mrs. Carscallen was a sister-in-law and also a cousin of Charles F. Wheeler. The relationship of these parties, together with the fact that Woodyatt and Mrs. Carscallen were related to testator’s wife and not by blood to the testator, is stressed for the purpose of showing the interest of these three parties in an attempt to influence the distribution of testator’s estate.

When the testator was in the hospital, in addition to his physician Dr. Koessler and the interne Thompson, he was attended by two nurses, one taking care of him during the day and the other one at night. The day nurse was Sarah McPhaden and the night nurse was Jessie Levanger.

Three experts testified for the contestants. These were McNally, Tenney and Rankin. None of these experts had ever seen or talked with the testator. The gist of their testimony was that a drug addict had certain symptoms which, being present, indicated the condition. These were constipation, pin point pupils, excessive perspiration, telling lies, no regard for money, no will power, no regard for family or friends. Taking these symptoms prior to the execution of the will of May 31, 1919, we find that there is in the record no evidence of constipation prior to that date. On the other hand, the hospital record shows just the contrary. There is no evidence in the record showing that the testator had pin point pupils. There is no evidence of excessive perspiration nor telling -of lies, neither is there any evidence of a disregard for his money so far as we can see it and no evidence of lack of will power. There does not appear to be anything showing a disregard of friends or relatives. On the other hand the testimony appears to be that he was in fact fond of his friends and his distribution of funds among his various relatives and his communications with them seem to indicate the contrary.

The expert testimony, based on the evidence of the nurse McPhaden, was to the effect that in their opinion the use of heroin in sufficient quantities from the time he entered the hospital to the day of the execution of the will, May 31, 1919, might create a drug habit. She testified that during his stay at the hospital there was a P. E. N. order, every three or four hours whenever necessary. This was the testimony taken during her Chicago deposition. At the trial she testified that she gave testator heroin at the Presbyterian Hospital as the doctor ordered, which would be “as necessary” and she stated that that was two or three times a day. The deposition of this witness was taken twice and she also testified at the trial and there is some force in the argument that her testimony with regard to the use of the heroin became stronger upon each occasion. In her first deposition no reference whatever was made to the administration of drugs or narcotics to the testator. This witness also testified that when Mr. Brown was at the hospital he had a bedroom and a sitting room with a door between and that from her seat at a desk in the hall, she had a view of the doors leading into Mr. Brown’s two rooms; that Mrs. Carscallen came to the hospital nearly every day and would remain in the room continuously from the time she came until the early afternoon. We cite this testimony because of the fact that it is insistently urged in the brief for contestants that Mrs. Carscallen hid in one of the rooms while the testator was talking to relatives and friends in the other. This is not borne out by the evidence.

During this stay of the testator in the Presbyterian Hospital in Chicago, a number of witnesses testified on behalf of the proponents of the will as to testator’s mental capacity, together with the facts upon which they based their opinion.

Thompson, the interne who was on duty 24 hours, was in charge of the case under Dr. Koessler, the attending physician who has since died. Thompson testilled, as already stated, that the testator could not have received more than 10 tablets of heroin during the entire time he was in the hospital and that this was not enough to produce a drug habit or to do any harm to the patient.

Miss Levanger, the night nurse, testified that shortly after his entry into the hospital he would be up part of the time and later on toward the last he would be fully dressed and taking automobile rides in the afternoons ; that in her opinion he appeared to be perfectly well; that he was not delirious while he was in the hospital and that in her opinion he was of absolutely sound mind; that he was given digitalis and heroin of the strength of 1/24 of a grain; that these doses were very small and would not affect the patient; that he was never dopey or unresponsive and had no appearance whatever of being a drug addict.

Kemper K. Knapp, a reputable lawyer of Chicago who prepared the will, testified that he had many business transactions with the testator dating back to 1900 and that he had represented him on several occasions as his lawyer. In the course of the preparation of the will Knapp made four visits to the hospital and stated that he had observed no difference in testator’s mental condition from that which he had observed for the 20 years preceding 1919; that he was sociable and had a number of friends, knew what he wanted, was willing to receive suggestions but was positive in his character and that in his opinion he was of sound and disposing mind and memory on May 31, 1919. It has been insisted that Knapp was the'attorney for Wheeler, but this fact is not borne out by the record. He did perform services for the firm of Pickands Brown & Company and may have performed services for the other partners in addition to the testator, but we see no force in this argument. The law firm with which Knapp was connected represented the executor of the estate, but Knapp by an instrument in writing has waived all claim to any fees which may be earned by his firm growing out of services rendered the executor of the estate.

Leonard F. Martin, an attorney associated with Mr. Knapp, saw the testator while he was in the hospital, and testified that in his opinion he was of sound mind and memory.

Albert M. Day, who was president of the Presbyterian Hospital and an old friend of the testator, testified that he had known testator intimately for 40 years and was with him in Del Monte in April, 1919, and had played golf with him prior to his illness; that he saw the testator frequently while he was in the hospital and talked with him at length and was of the opinion that he was of sound mind and mentally capable.

The Rev. John R. Hunter of California stopped in Chicago in May, 1919, and visited the testator at the hospital, and testified that he talked with him and that he was in full possession of his faculties.

Harriet Seymour Carscallen testified that she came to Chicago in response to a telegram from Boynton stating that her aunt had died on the trip; that she visited the testator nearly every day during the month he was in the hospital; that she frequently took rides with him in the automobile, but did not know of the execution of the will except that testator introduced her to Mr. Knapp as his niece who was to benefit thereunder; that she did not talk with him about the contents of the will; that he was in her opinion fully competent and capable of making a last will and testament.

Dr. Rollin T. Woodyatt, who had known the testator for a number of years and had been his physician from 1907 to 1919, testified that he visited him at the hospital and found that his mind was clear and that he was capable of transacting business.

Charles Wheeler, a partner and intimate friend of the testator, testified that he saw him nearly every day at the hospital and that the testator discussed business conditions with him and asked about the members of his, Wheeler’s, family, and also about his friends in the steel business and that in his opinion Brown was of sound and disposing mind and memory at that time. Wheeler testified that the testator discussed with him the making of a new codicil to his old will and that he dictated to him certain items which he desired to have changed and these were written by Wheeler on the back of an envelope and transmitted by him to Knapp. This fact has been urged by contestants as an indication of the domination of Wheeler over the testator, but the fact is that this codicil was subsequently supplanted by the new will itself, as already stated. The testator, himself, later on May 26, outlined the directions and terms of the will which was subsequently executed May 31, 1919. It was based upon this memoranda that Knapp prepared the will and which the testator read over before signing. These directions are so clear and so indicative of a mind free from mental disturbances that we feel that it should be set out in full. The document, which was written by the testator in his own handwriting, follows :

“May 26

“Dear Mr. Knapp

“As arranged I enclose memorandum for will which you can now make including in it the codicil made on the 24th. If the memo is not clear to you please let me know by telephone or otherwise as you think best the main thing being that now that I have got at it would like to see it all in proper shape by an early date.

Yours truly

W. L. Brown.

In the list I have named the relationship where it exists but do not particularly care to have it done in the will unless you think it essential and particularly because some are really half nephews and nieces. Isabelle Jane (Brown) Northcott of Luray, Virginia (my sister) or in the event of her decease to her daughter Kate M. Northcott 50,000.00

Helen Louise (Brown) Bice (my sister) of Chicago, Ill. 25,000.00

Hiram Liberty Brown (brother) St. Joseph, Michigan or his heirs . 25,000.00

George Drew Brown (brother) Chicago 25,000.00 in Trust.

The income to be paid to him semi-annually and after his decease the principal to be paid to Clarabelle Bice spinster (my niece).

Walter H. Brown (nephew) Pasadena, Calif. 10,000.00

Wm. Brown Winslow (grandnephew) Chicago One Thousand- 1,000.00

Bollin T. Woodyatt, Chicago 10,000.00

Henry Wilson Park

Custis Barber, Chicago (godson)

my watch and chain

Harriet Seymour Carscallen — Chicago all the remainder of my estate but in case of her decease to go to the same charities and in same proportions as those to be given from the proceeds of the stock of Pickands B. & Co.”

No witness testified that during this period of time the testator was other than mentally capable of making and executing the will in question. We cannot help reach the conclusion in view of the evidence that at the time of the execution of this will the testator was of sound and disposing mind and memory. There is no evidence that Wheeler or Mrs. Carscallen had anything to do with the preparation of the will or were present at the time of the writing of the letter of May 26 by the testator, upon which the will is based, or at the time of the execution of the will itself.

Upon his discharge from the hospital the testator took up his residence in his home at Evanston, Illinois. With him at this time were Mrs. Carscallen and her sister and Sarah McPhaden, the nurse. While he was in the hospital and also during the time he was in his home at Evanston, the testator had discussed with Mrs. Carscallen the question of buying a home in Pasadena and selling the Evanston property. An understanding was arrived at, as a result of which Mrs. Carscallen was to take charge of the Pasadena home and shortly after this discussion the Evanston house was sold. It appears from her testimony that during the time he was in Evanston he selected the furniture which he wished taken to California and supervised its packing and decided what was to be left. A home was subsequently purchased at Pasadena, California, and Mrs. Carscallen was placed in charge. The nurse McPhaden accompanied testator to the Evanston home and from there she accompanied the testator and Mr. Boynton, testator’s partner, to Port Arthur, where she remained until October. According to her testimony she was with the testator continuously with the exception of a few days when he went fishing up the Nipigon river; that all three of them lived at a hotel in Port Arthur. Mr. Boynton has since died, so that his testimony as to what took place at Port Arthur is not obtainable.

After leaving Port Arthur, testator went to a shooting club at Rockwood, Michigan and Sarah McPhaden went to her home at Toronto, where she remained a week or more. According to arrangements she later met the testator at the Blackstone Hotel at Chicago where they remained two or three weeks. From there she proceeded to the testator’s home on El Molino avenue in Pasadena and arrived there shortly before Thanksgiving. She remained with the testator as his nurse at this home until February 15, 1920, at which time she was released from further service. The facts concerning her release from service are not in evidence as testimony upon that question was ruled out by the court and will be considered upon the discussion of the question of contestants’ assignment of cross errors.

The nurse McPhaden testified that while in Evanston and shortly after leaving the Presbyterian Hospital she had in her possession heroin which had been given her by Dr. Koessler, the testator’s attending physician. As we have already pointed out, Dr. Koessler has since died so that the court and jury were deprived of his testimony. Sarah McPhaden testified further that while in Evanston she gave the testator heroin whenever necessary and, in fact, quite often as he did not have the strength to fight off his coughing; that what she gave to him was pursuant to the doctor’s orders; that when she went to Port Arthur she had some of this narcotic with her which she had obtained from the physician; that she administered heroin every two or three hours when necessary and that she did not think she ever missed a day. She stated that the patient’s condition was aggravated because of heavy dampness and fog; that there were very many of these damp bad days; that she continued this practice with reference to the heroin from the time they left Chicago until she left Pasadena; that testator would have hard coughing spells and that there would be beads of perspiration on his forehead. This witness further testified that from the day they left the hospital until she left Pasadena the testator had never received any adrenalin, hypodermically or otherwise. The nurse McPhaden testified on cross-examination that heroin cannot be obtained except on the prescription of a physician and that this narcotic, as well as others of similar kind, are never administered except under the directions and orders of the physician in charge of the case. It is generally conceded that the Federal Narcotic Law prevents the general sale of such substances. This witness McPhaden testified that while they were in Port Arthur she used to leave these tablets (heroin) beside his bed and let him take them himself. It is hard to conceive the fact that a trained nurse would permit a patient under her charge to have free access to such a dangerous habit producing narcotic.

In contradiction to the testimony of the witness McPhaden as to the weather at Port Arthur while she and the testator were there, several letters of the testator were introduced in evidence, one dated August 26, 1919, to McKenzie, the lawyer, acknowledging receipt of two letters from him and stated that he had been on the Nipigon river where he had spent a week on a very satisfactory outing and that the weather was beautiful. On August 30, 1919, he wrote to Harvey Brown of Cleveland, “I am finding this place very satisfactory and each week shows good progress toward renewed health.” On September 1, 1919, he wrote McKenzie a letter in which he said: ‘ The weather here continues very satisfactory and am making progress favorably.” On September 12, 1919, he again wrote McKenzie a letter in which he said: 11 The weather here continues very satisfactory and each week brings me some improvement. ’ ’ An attempt was also made by proponents to introduce in evidence the monthly record of the weather report of the Dominion of Canada covering this particular location, hut its admission was objected to by counsel for contestants as not properly proven so that it is, therefore, not in the record.

The nurse McPhaden’s testimony as to the administering of heroin to the testator is contradicted by Dr. Huber, a witness for proponents, who was an" assistant to Dr. Koessler, the attending physician.

Dr. Huber testified that he saw the testator three to five times between the first of June and the middle of July while he was at Evanston and stated that he did not believe Dr. Koessler was at that time going to the Evanston home to see the testator; that during his, Huber’s, visits he found the testator in good condition and up and about; that he, himself, did not prescribe any heroin and neither did Dr. Koessler; that testator had a bed sore which healed completely; that he did not recall his having any asthma at this time; that he, Huber, had been associated with Dr. Koessler for some time and never knew of his giving heroin to an asthmatic patient.

Effie Sherwin testified that she was engaged in Pasadena as a nurse for testator in December, 1922, and continued in that position until the time of his death, with the exception of certain periods when she was absent on leave; that during the last two years of his life she was with him continuously; that during the entire time she never gave any heroin to the testator but had given him six or eight doses of codein, -which he did not care to take; that she never at any time saw any evidence that testator was a narcotic addict and that he never asked for any narcotic from her; that at one time testator had a bad attack and a physician was called in who gave him a morphine hypo and left 2 tablets which were' not used. The witness testified further that she gave testator adrenalin during an asthmatic attack, at first in tablets and later hypodermically.

Dr. Sherry, a witness called by contestants, stated that he first met testator in the fall of 1922, and visited him a great number of times from then on until 1929; that asthma was the main feature of the case which is manifested by shortness of breath and a choking sensation; that the testator’s main relief was from medicine known as adrenalin; that this was prescribed by him and that it was administered hypodermically; that he showed Frank Phillips, the testator’s chauffeur, how to administer it and that he had never seen the testator under the influence of drugs or narcotics except when he was operated upon at the Pasadena Hospital, which was on the 9th of May, 1928.

Dr. Pinness testified that he became acquainted with the testator in May, 1926; that he is a specialist in allergic diseases, which includes the group known as asthma, hay fever, eczema and hives; that he saw him a great number of times in 1926, 1927, 1928 and 1929; that he had a complete record of the prescriptions which he wrote for the testator and one contained % grain of codein to the dose; that this amount can be sold over the counter and is found in the ordinary cough syrup; that it would have no permanent effect upon the patient nor was it habit forming; that in November, 1927, he gave a prescription which was hypodermic tablets of codein sulphate; that while this was a narcotic, it was not sufficient to create a habit; that he gave him a solution of fedrin inhalant; that he knew that the testator was taking adrenalin hypodermically; that this is not a narcotic but is used frequently by asthmatic patients; that during his visits to the testator he discussed books, paintings and various subjects with him and that he never at any time heard or saw anything that would indicate that the testator was wanting in mental capacity; that his mental condition was no different when he first saw him in May, 1926, until he saw him last in September, 1929; that he believed he was of sane and sound mind and found him always solicitous of the welfare of his family and friends; that the testator told him he was particularly interested in the research work of Dr. Woodyatt of Chicago and that he was very fond of him and that he had given him some money in his early career in order to encourage him in his research work; that he never remembered the testator ever having been given heroin and remembered only the one occasion he was given morphine.

Dr. Skeel testified that he was a medical director of the Occidental Life Insurance Company of California and was well acquainted with the testator and saw him on numerous occasions. This witness was Mrs. Carscallen’s brother-in-law. Dr. Skeel testified further that he called frequently at the residence of the testator and talked with him about the adrenalin treatments which he was receiving for his asthma and the testator told him he was grateful to find something that relieved him as effectively; that adrenalin hypodermically administered, or otherwise, could not have the slightest effect upon the mind or mentality; that the mental condition of .the testator was above the average and he saw him up until the time of his death.

It would be impossible to discuss the evidence of the various witnesses as to the condition of the mind of the testator from the time he left the Presbyterian Hospital in 1919, until his death, because of the number.

Huida Johnson, the maid; Baxter, the boatman; Dr. Chislett, a Chicago surgeon who was in California nearly every winter; Dr. Roberts, the oculist in Pasadena who took care of the testator’s eyes and met him upon frequent occasions, all testified that he was of a kindly and sociable disposition, perfectly sound mentally and capable of transacting business. Dr. Roberts, the oculist, testified that he never observed anything about Brown that appeared queer or unusual. Helen Gfustavson, the cook at the Pasadena home; Agnes Lundin, the parlor maid; Katherine Egan, a stenographer who took dictation from him two or three times a week; Elmira Luebke, a teacher in the Pasadena schools; Lassiter, who was the cook and cabin boy on testator’s boat; Harry Lonsdale, an actor; Lester Shanks, captain on testator’s yacht; Fred Brown, his tailor; Frank Case, manager of the Crags Country Club, of which the testator was a member, in addition to a long line of distinguished men, friends and acquaintances including such names as A. Muller-Ury, the distinguished portrait artist, who painted the testator’s picture in 1924, and saw the testator frequently in Pasadena. .This man described the testator as a sincere, wonderful personality and an intelligent business man and that he was very keen mentally; Henry G. Dalton of Cleveland, chairman and a director of the board of the Youngstown Sheet and Tube Co. and a friend of the testator’s for many years; Alexander F. Banks, president of the Elgin, Joliet & Eastern Railroad; E. J. Buffington, for many'years president of the Illinois Steel Company; Alva T. Story, superintendent of the duck club, located on the Point Mouilee property, of which Brown was a member, who stated that until 1925 testator never missed a year’s attendance; Fayette Brown of Cleveland, a member of the duck club; William B. Bangs, manager of the Chicago Club, to which the testator belonged; Joseph R. Julin, secretary of the First Union Trust and Saving Bank of Chicago, and a number of friends who saw him frequently in California, including John H. Hardin, an optical manufacturer; Moise Dreyfus, who is in the iron and stone 'quarrying business;'Moses Born, a clothing manufacturer of Chicago'; William A. Dyche, business manager of the Northwestern University; Silas H. Strawn, a lawyer of Chicago; Bernard E. Sunny, for a number of years president and after-wards chairman of the Illinois Bell Telephone Company; Conrad H. Poppenhusen, a lawyer; George P. Merrick, a lawyer; Ira C. Copley, a member of Congress for a number of years and the owner of several newspapers in California; Frank 0. Lowden, former governor of Illinois; Thomas Taylor, for a number of years a judge of the circuit court of Cook county and Dr. W. L. Teaby, a witness called by the contestants, who described the testator’s daily life as that of a sane individual and normal.

In addition to these witnesses a number of letters from the testator to numerous individuals were introduced in evidence covering a period of time from 1918 up to the time of' his death. These letters include business communications in regard to his affairs, letters to friends and letters to his attorneys and the members of his firm. There were a great number of these letters. From none of them does it appear that there was any indication that the testator was other than a man in the full possession of his faculties.

Testator was a member of the board of directors of the First National Bank and, in 1923, established an agency account with that bank for the safe-keeping and custody of various securities. Julin, a witness already referred to, was secretary of an affiliate of that bank, and took care of his interests and collected dividends and cut coupons in order to deposit them to testator’s account. The testator wrote Julin frequently in regard to what should be done with his income. These letters are clear, direct and concise. It would be impossible to quote from the great number of letters and communications, but we cannot help referring to certain communications as indicative of his grasp of business affairs. In May, 1927, he wrote Julin that he noticed that the common stock of the Chicago & Northwestern Railroad was advancing in price and that if it reached 95 he wished to sell 200 shares of the stock which was held in trust. In view of what has transpired in the financial world this letter is significant. In September, 1927, he directed the sale of 100 shares of Peabody Houghteling & Co. stock. He suggested in another letter the substitution of other securities in the trust estate created for his brother George Drew Brown by the sale of Wilson &! Company convertible bonds and the purchase of other securities if the interest on these bonds was not paid. In January, 1928, he wrote to Mr. Shannon, an officer of the bank, suggesting that he was inclined to sell his shares in the White-stone Company and giving his reasons. The White-stone Company operated the Drake Hotel and has since gone into the hands of a receiver. But one inference can be drawn from a perusal of these communications and letters, namely, that his mind was unclouded by the-use of drugs or narcotics and that he was a man capable of transacting business in a degree above the average. In addition to these letters his diary is in evidence which contains a statement of his financial position at the end of each year from January, 1921, to the date of his death.

On January 28, 1925, he executed the first codicil to his will at Pasadena. By this codicil he cut Mrs. Carscallen from an outright interest in the residue of his estate to a life estate with the remainder after her death to certain charities specified in the will. In this codicil it was also provided that if the book value arising from' the sale of his stock in the Pickands Brown & Company should exceed $100 a share, the excess should be paid to Mrs. Carscallen instead of to the charities. By this codicil the will was reaffirmed except as modified by the codicil.

On January 8, 1925, he wrote a letter to Knapp, the attorney at Chicago, in which he stated that after a conference with Mr. Wheeler he was canceling the codicil of November 6, 1920 (which is not involved in this proceeding) in which he embodied some changes in his will and particularly with reference to the Pickands Brown & Company stock. This letter is clear, concise and intelligent. Upon receipt of this letter the codicil was prepared and returned to the testator who thereupon took it to the Security First National Bank in Pasadena where it was executed by him and witnessed by Russell Hall, A. J. Hay and C. J. Hall, officers of the bank. No one was present at the execution of this codicil to the will except the testator and those named who signed as witnesses. These men have testified that in their opinion, at the time of the execution of this codicil, testator was of sound and sane mind and in the full possession of his faculties.

In January, 1928, the testator sold-the balance of his stock in the Pickands Brown & Company to the sons of Wheeler and Boynton. In addition to the price received for the stock the purchasers agreed to pay testator $16,000 for the first year after the sale and $12,000 a year for every year thereafter so long as the testator lived. On January 19, 1928, testator wrote to Knapp, his attorney in Chicago, requesting him to prepare an additional codicil to his will. On January 20, 1928, he added a postscript to the communication. This communication is so indicative' of his grasp of the situation and the thorough knowledge of the testator as to his previous will and codicil, that we feel it important to make it a part of this opinion. It reads as follows:

“1289 South El Molino Avenue

Pasadena, California

January Nineteenth 1928

“Mr. K. K. Knapp,

Continental National Bank & Trust Company Bldg., Chicago, Illinois.

“Dear Mr. Knapp:

“I have sold all of my stock in Pickands, Brown & Company to my partners in interest, so that it will be necessary for me to make a codicil practically largely in place of the one I made January 28,1925, this codicil to cancel all bequests made based upon this stock. I think all of this basis is covered in the codicil made on the above mentioned date, altho if on examination of the original will and other codicils you find it necessary to make other changes in connection with the Pickands, Brown & Company stock, please do so. Assuming I am correct about the entire matter, the Pickands, Brown & Company stock covered in that codicil and including part of Paragraph Tenth (B), which reads: ‘All sums realized from the sale of such stock in Pickands, Brown & Company in excess of the par value thereof, etc. ’ will be cancelled.

“Then following all this I wish the bequests to be made as follows: I give and bequeath as follows:

“$75,000. to the Presbyterian Hospital of the City of Chicago for General Endowment Fund.

“$35,000. to the Chicago Memorial Hospital of Chicago, Illinois, for the establishing and maintaining of a room in said Hospital in memory' of my deceased wife, Catharine Seymour Brown, to be known as the Catharine Seymour Brown Memorial Boom.

“$20,000. to the Evanston Hospital Association of Evanston, Illinois, for a General Endowment Fund to be known as the Catharine Seymour Brown Memorial Endowment Fund.

“$10,000. to the Glenwood Training School of Chicago Heights, Illinois.

“$10,000. to the Chicago Orphan Asylum of Chicago, Illinois.

“$10,000. to the Home for Destitute Crippled Children of Chicago, Illinois.

“$10,000. to the Country Home for Convalescent Children of Du Page County, Illinois.

“$10,000. to the Chicago Orchestral Association of Chicago, Illinois, to be applied on its mortgage indebtedness.

“$35,000. to Rollin T. Woodyatt, of Evanston, Illinois, to be used by him for research work, or such other charitable purpose as he may elect. And I expressly direct that his use of the sum shall not be subject to any restriction, nor shall he be required to report the use thereof, but such use shall be wholly within his own discretion.

“You will notice that these bequests as outlined above are all practically the same as in the other codicil.

“I also wish included in the codicil the following bequests:

“To Charles D. Ewer of Chicago, Illinois, $5,000.

“To Frank Phillips, of Pasadena, California, my faithful employee for many years, $5,000.

“I also wish to cancel the following which you will find in my original will:

“ ‘Article I. I give and bequeath to Isabella Jane (Brown) Northcott, of Luray, Virginia, or in the event of her death prior to my death, to her daughter, Kate M. Northcott, the sum of Fifty Thousand ($50,000.) Dollars.’

“I am making this cancellation because my sister, Mrs. Northcott, died about seven years ago and her heirs have been amply provided for since.

“I shall be glad to have this codicil drawn and sent to me at as early a date as practicable, and if there are any questions that arise in your mind in respect to it, if necessary please use the wires freely.

“Very truly yours,

WLB :KCE (Signed) W. L. Brown

“P. S. If Mr. Knapp is absent, please have Mr. Campbell give this matter attention as I am quite anxious to have it done at as early a date as possible.

January 20th, 1928.

“P. S. Since writing the enclosed letter, I have quite carefully looked over the codicil dated the 28th day of January 1925 and note that Article Eleventh of that codicil alludes to certain paragraphs in it, so that possibly the new codicil may conflict in its paragraphs with those mentioned in Article Eleventh of the former one. Of course, it is quite possible and probable that this will also be immediately noticed by you, still I thought it well to call your attention to it that you might see that the new codicil, as it will be drawn, does not conflict with those paragraphs alluded to in Article Eleventh of the old codicil.

(signed) W.L.B.”

This codicil was prepared and returned to the testator and again the testator went to the Security First National Bank of Pasadena, where this last codicil was again witnessed by the same persons who had witnessed a previous codicil of 1925. The witnesses to this codicil have testified that, in their opinion, testator was of sound and disposing mind at the time of its execution. It amounts to a republication of the will and if there was any question as to the validity of the original will, it was removed by the execution of this last codicil. Hobart v. Hobart, 154 Ill. 610.

Mrs. Carscallen’s interest in the estate was unchanged; all the stock of the Pickands Brown & Company had been sold, so that neither Wheeler nor Boynton nor their heirs could have profited by its execution. There is in the record no evidence that anyone attempted to influence the testator at the time of its execution and the evidence is uncontradicted that it was executed by him alone and out of the presence of any of the so-called conspirators whom it is claimed might have been benefited by his previous will and codicil.

Contestants have assigned as cross error the action of the chancellor in refusing to admit in evidence testimony to the effect that while the testator and the nurse McPhaden were in Port Arthur he proposed marriage to her and that later at Pasadena when this- fact came to the knowledge of Mrs. Carscallen and Wheeler they protested vigorously against his undertaking any such step and influenced him against entering into any such relationship with the nurse McPhaden. This was after the execution of the will and eight or nine years prior to the last codicil. It was intended by this evidence to show their domination over the testator. It had no place in the record and was entirely unrelated to the execution of the will or any codicil. According to the offer of proof, the nurse McPhaden would have testified that she would have married the testator if there was a definite understanding that she was to be the real Mrs. Brown. If she was willing at this time to enter into a matrimonial relationship with the testator, it must be self evident either that the testator at this time was not mentally deficient and the drug addict claimed by contestants, or else she was willing to enter into a contractual relationship with one wholly incapable of becoming legally obligated. We prefer to give her the benefit of the doubt and must assume that she considered him capable of contracting the marital relationship.

Cross error is assigned on the refusal of the chancellor to admit the testator’s will of 1907. It has been the rule, as laid down by the Supreme Court of this State, that where the terms of such a will are at varianee with the contested instrument, it is not admissible. Pollock v. Pollock, 328 Ill. 179.

We find no error in the action of the chancellor in rejecting certain other evidence particularly with regard to the joint rental of a safety deposit box in the Union Trust & Savings Bank at Pasadena, California, in 1920, by the testator and Mrs. Carscallen nor did the court err in refusing to admit the letters of Sarah McPhaden to the testator in February and March of 1920. These letters could in no way be binding upon anyone and were properly excluded.

The entire theory of contestants’ case rests upon the assumption that Wheeler, Mrs. Carscallen and others conspired together for the purpose of inducing the testator, a man addicted to the use of drugs, to change his will in favor of the conspirators. In our opinion the question of mental incapacity is entirely out of the case as the evidence is overwhelmingly in favor of the presumption that he was of sound and disposing mind during the entire period from the time of the making of the original will, May 31, 1919', until his death.

The testimony to the effect that he was addicted to the use of drugs is based entirely upon the testimony of the nurse McPhaden, and the testimony of three expert witnesses who never saw the testator and whose testimony was based upon evidence as to a hypothetical man. The courts of this State have repeatedly held that such expert testimony is generally discredited and regarded as the most unsatisfactory part of judicial administration. This, because of the fact that it has become well known that experts are hired partisans and testify for a monetary consideration. Opp v. Pryor, 294 Ill. 538.

From the cross-examination of certain witnesses testifying on behalf of the proponents, certain isolated facts testified to were segregated in order to help work out a foundation for the hypothetical questions presented to the experts. An attempt was made to show that the testator was a liar because he made statements as to certain capacities in which he served during the Civil War. There was no testimony to refute these statements. It was also stated by a witness that he, testator, stated to this witness that he was interested at one time with Frick of Pittsburgh in a proposition in Oklahoma. The witness, introduced by the proponents, who took care of his affairs, testified that he did not know of any such deal. This testimony, of course, was negative and, consequently, of no effect. Certain other instances are cited, none of which appeal to this court as indicating that the testator was other than the man portrayed by the evidence of his friends, namely, a man of good character, truthful and extremely well thought of.

Courts will not deal in surmises and conjectures. Charges of conspiracy must be based upon facts. Of the conspirators charged with exercising undue influence in the procurement of the will and codicils, Mrs. Carscallen was the only one who directly benefited. Wheeler was related to Mrs. Carscallen, but this alone was not sufficient to charge him with a conspiracy unless coupled with some interest. It is claimed that his interest was in having the testator provide for the purchase of the stock in Pickands Brown &i Company by Wheeler and Boynton at a certain price, as shown by the books of the company and that this price was below its actual value. This agreement had been in force and effect as between Brown, Boynton and Wheeler, the three owners of the company, from 1904. It was a business proposition and Wheeler was justified in attempting to see that this business arrangement was carried out.

It is charged that Dr. Albert M. Day, president of the Presbyterian Hospital, had brought pressure to bear upon the testator to induce him to leave a substantial bequest to the hospital. Dr. Day, himself, received no pecuniary benefit from this bequest as he was the honorary president of the institution and received no salary.

Dr. Rollin T. Woodyatt received for research work a certain amount under the terms of the will, but there is no evidence that he was present at any time at which the will or any of its codicils were made and executed.

As we have already pointed out, however, when the final codicil was executed in Pasadena on January 30, 1928, Mrs. Carscallen received no benefit by reason of the addition of the codicil, and the stock of Pickands Brown & Company had been entirely disposed of, so that Wheeler’s interest, if any, was nil.

The fact that Knapp, the attorney, may have also been the attorney for Wheeler does not necessarily indicate undue influence by Wheeler. Knapp had been attorney for Brown in a number of instances long before the execution of the will. Britt v. Darnell, 315 Ill. 385.

In order to invalidate a will it is necessary that the undue influence charged shall have been exercised and directly connected with the execution of the instrument and operate at the time of its execution. It must be such as to destroy the freedom of the testator’s will and render the instrument more the offspring of the will of another than that of the testator. Mere persuasion or decision or the influence of affection is not regarded by law as undue influence. Biggerstaff v. Wicks, 348 Ill. 129; Jones v. Worth, 319 Ill. 235. Even though it might possibly have been assumed that the testator was addicted to the use of narcotics, nevertheless, this would not invalidate the will unless the testator was under the effect of such drugs or opiates at the time of the execution of the will and thereby render him incapable of executing the instrument. Long v. Brink, 353 Ill. 549; Greenlees v. Allen, 341 Ill. 262; Slingloff v. Bruner, 174 Ill. 561; Bradley v. Palmer, 193 Ill. 15. There is no evidence in the record to the effect that the testator was, at the time of the execution of any of the instruments involved in this contest, under the influence of any drug or narcotic.

In conclusion let us say that in this case the testator had no children. Grantz v. Grantz, 314 Ill. 243. He was apparently greatly attached to his niece, by marriage, Mrs. Carscallen, who lived with him and his wife from childhood except during certain years when she was in Europe and in school. He apparently had a strong affection for his business associates who treated him, in our opinion, fairly and with generosity during the years he was in California and inactive in business and the mere persuasion of these, or advice given which might have to some extent influenced him in the making of his will, was, nevertheless, insufficient to deprive him of his power to leave his property as he wished. Greenlees v. Allen, 341 Ill. 262.

The presumption of sanity at the time of the execution of the will must be indulged in favor of the testator and the rule applied in some jurisdictions that if there is any evidence, even a scintilla, tending to support the plaintiff’s case, the cause must be submitted to the jury, is not followed in this State. The test is whether there is evidence in the record which, with all its reasonable inferences taken in the aspect most favorable to the contestant, may be sufficient in law to support the cause of action. Greenlees v. Allen, 341 Ill. 262.

It is urged that the fact that the jury returned nine special verdicts in favor of the contestants adds strength to their position, but in view of the fact that there was no evidence whatsoever of mental incapacity, the three special verdicts finding such to be the fact are entirely unsupported by any evidence. This would indicate that the jury had not given much thought to the testimony and, consequently, weakened its general verdict in all other respects.

The trial court in passing upon the motion for a new trial stated that he was of the opinion that the jury would find, as he believed they should, that there was no lack of testamentary capacity. If the chancellor believed that the testator was mentally sound he should have removed that question from their consideration.

After a careful consideration of all the evidence in the case, we are forced to the conclusion that the testator was in all respects and at all times possessed of the necessary testamentary capacity to execute the will and the codicils in question. We are also of the opinion that the testator was not addicted to the use of drugs or narcotics, nor are we of the opinion that there was suEcient evidence showing that undue influence exercised at the time of the making of the will or either of the codicils, which would indicate they did not express the real intention of the testator. We find the charge of conspiracy is not borne out by the evidence and particularly are we impressed with the fact that when the final codicil to the will was executed in January, 1928, it was by the testator alone and not surrounded by any facts or circumstances which would indicate that it was the result of influence brought to bear by others-. The entire transaction during the 10 years from the time of the execution of the original will in 1919 and until the codicil in January, 1928, appears to have been pursuant to a plan in the mind of the testator which he consistently carried out to its final conclusion.

This case took several weeks to try. The depositions of a great number of witnesses were taken which necessarily must have been at a -very considerable expense. The value of the estate has evidently depreciated by reason of the lapse of time since the probation of the will. Upon the evidence contained in this record the chancellor should have directed a verdict in favor of the proponents of the will and entered a decree in conformity thereto.

We have been asked to reverse this cause with a finding of fact. Paragraph 119 of the old Practice Act, section 120, Cahill’s Illinois Revised Statutes, ch. 110, provides that the Appellate Court may find the facts differently from those of the trial court, except in a chancery proceeding. Paragraph 7 of the Statute on Wills, Cahill’s Illinois Revised Statutes, ch. 148, provides that any contestant may appear and by his or her bill in chancery contest the validity of the will.

In view of these enactments, this court is without power to reverse with a finding of fact, as requested by the proponents of the will.

For the reasons stated in this opinion, the decree of the circuit court will therefore be and hereby is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Hall, P. J., and Hebel, J., concur.


text:
    John Kozakiewicz and Johanna Kozakiewicz, Appellees, v. Albert F. Hammann, Trading as Hammann Mortgage and Bond Organization, Appellant.
    Gen. No. 36,650.

      Opinion filed February 7, 1934.
    Arthur J. Hughes, for appellant; Frank Michels, of counsel.
    C. C. H. Zillman and Lowes & Lowes, for appellees.
   Mr. Justice Wilson

delivered the opinion of the court.

Plaintiffs recovered a judgment against the defendant on a check dated March 31, 1926, in the sum of $4,040.41, upon which payment had been stopped on April 6, 1926. Suit was started by the plaintiffs upon this check five years after its issuance and nearly five years after payment had been stopped. No satisfactory explanation for the delay in bringing the action appears from the record and this fact is in itself so incomprehensible to the ordinary mind, that a court necessarily would feel called upon to scrutinize the claim closely and to search the record for the purpose of ascertaining whether or not the defendant had been fully protected in its defense of the action. Evidence which might otherwise be obtainable often becomes lost after the lapse of time.

It appears that on March 2, 1926, the plaintiff, Johanna Kozakiewicz, made a written application to the defendant for a real estate loan for the sum of $15,000 upon property located in Chicago. The application was signed in her name by Louis W. Mack, her attorney. In the entire transaction it appears that Mack acted for and on her behalf as agent in the transaction, and the defendant dealt with him as such. There was already upon the property a $10,000 loan and the $15,000 loan was to take this loan up and the balance to go to the plaintiff. The deal was made and the first check issued March 31,1926. For some reason which does not clearly appear, payment on this check was stopped and a second check issued which was cashed by Mack, plaintiffs’ agent. The check, however, bears Johanna Kozakiewicz’s indorsement as well as that of her husband, John Kozakiewicz, also a plaintiff ip this suit, and the indorsement of Mack. The check was duly paid by the bank. It appears that the proceeds of the check were paid to Mack and, according to his testimony, he in turn paid it over to the plaintiffs in this action. This was one of the defenses and, if true, of course would be a complete defense to the action as the consideration for check number 1 was the same as for check number 2. Plaintiffs contend that the signatures were forgeries, although the plaintiff Johanna Kozakiewicz did not testify that it was not her signature. An expert witness was placed upon the stand who testified, that in his opinion her signature was a forgery.

Mack, called as a witness for the defendant, testified that he had paid the entire amount of the money as shown by the second check to the plaintiffs and produced a check dated April 30, 1926, in the sum of $1,000 (defendant’s Exhibit No. 4) payable to Mrs. Johanna Kozakiewicz and bearing her indorsement. Plaintiff testified that she had never seen this check referring to defendant’s Exhibit No. 2.

As one of the grounds for a new trial, defendant produced an affidavit showing that since the trial an examination of the records- of the Northwestern Trust & Savings Bank showed that this $1,000 check (bearing indorsement of plaintiff) had, in fact, been deposited in that bank to the account of Dr. Leon Kozakiewicz, a son of the plaintiffs. It appears that this check was produced by Mack for the defendant on the first day of the trial, and that the following day was an election day and the bank was in the hands of a receiver and it was necessary to make a complete examination of the records in order to find this particular item.

The plaintiff on cross-examination testified that she had no dealings with a bank at Genoa, Wisconsin. An affidavit of an officer of that bank, offered in support of a new trial, stated that this was in fact not true; that she had had dealings with the bank on several occasions.

In view of the fact that the defendant had lost valuable rights by reason of the delay in bringing the law suit, the court might well have considered these affidavits even though cumulative. This, however, was a matter of discretion and would not in and of itself justify a reversal.

More serious objections are found, however, in the proceedings. In the course of the argument by counsel for the plaintiffs, he stated that it had developed from the testimony of the witness Mack that there was a' surety company back of the entire proceedings and that these surety companies are for the purpose of guaranteeing loss against forged signatures. This was error. There was no evidence in the record to justify this statement. Mack was asked whether he had something to do with the National Surety Company and stated that he did not know whether it, the insurance company, had indemnified the defendants.

The court instructed the jury that, as a matter of law, in order to pass title to a check from the payee to a third party, it was necessary that it be indorsed and delivered by the payee and that if they believed from the evidence that the names of the plaintiffs appearing on the back of the check were not written by the plaintiffs or anyone authorized by them so to do and the plaintiffs did not get the money, their verdict should be for the plaintiffs. This suit was not on the second check but on the first one still held by plaintiff. This was a peremptory instruction. An instruction peremptory in its character should contain all the facts. The fact of the issuance of the first check by the defendant, and its receipt by plaintiff should have put plaintiff on notice.

The holder of a check should exercise his right to obtain payment on the same within a reasonable time after its issuance to him as payee. The fact- that it was presented and payment stopped when an attempt was made to cash the check should at once place the payee upon inquiry. The time elapsing from the failure to receive payment upon presentation and the starting of the suit was of such an extent as to throw upon the plaintiff the burden of excusing the delay. Even the forgery of plaintiff’s name on the second check was not an absolute defense to the first. Moreover, an instrument dated November 3, 1928, being an instrument signed by the plaintiff, Johanna Kozakiewicz, appears to have been a settlement in full of all matters between herself and Louis Mack and a receipt for all papers, documents, deeds and other things and a release in full of all claims to date. This document strongly bears out the testimony of the witness Mack, agent of the plaintiff, to the effect that the moneys had been paid by him to his principal.

Under the view we take of the facts and in view of the error in the argument of counsel and the giving of instructions, we are of the opinion that there should be a new trial and for that reason the judgment of the circuit court is reversed and the cause remanded.

Judgment reversed and cause remanded.

Hall, P. J., and Hebel, J., concur.


text:
    Emily Holl, Appellant, v. Edward M. Levin et al., Appellees.
    Gen. No. 36,673.

      Opinion filed February 7, 1934.
    Rehearing denied February 26, 1934.
    Frederick W. Winkler and Robert H. Eberle, for appellant.
    Butz, von Ammon & Marx, for appellee Chicago Title & Trust Co.; Frederick Z. Marx, of counsel.
    Francis E. Matthews, pro se; J. R. Harmon and C. F. Springer, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

This was an action to foreclose a trust deed which was brought by the owner of 9 bonds of $500 each, aggregating the total sum of $4,500, being part of a total bond issue aggregating $350,000, dated August 1, 1925. A demurrer was sustained to complainant’s amended bill and the amended bill dismissed for want of equity, from which order this appeal has been perfected.

A part of the bonds matured semiannually, beginning August 1, 1927, and the balance becomes due August 1, 1935. The bonds were secured by a trust deed on property in the City of Chicago, and the loan was made and the bonds sold by the firm of Lackner, Butz & Company, a corporation, which has since gone out of business. The Chicago Title & Trust Company was named as trustee in the trust deed.

The bill charges that the trustee on April 16, 1930, caused a certain protective committee for the holders of these bonds to be formed and organized and that one Pettibone, president of the Chicago Title & Trust Company, is its chairman; that the former officers in control of Lackner, Butz & Company organized the Lake Shore Securities Company; that the trustee refuses to act except at the instance and direction of said committee; that the power to accelerate the unmatured bonds lies solely within the Lake Shore Securities Company, said protective committee and Chicago Title & Trust Company as depositary thereof; that the trustee is not acting with impartiality as between the depositing and nondepositing bondholders. The bill further charges that the complainant has asked and demanded of the trustee and these committees, the names of the other unpaid bondholders in order to secure their consent to a demand on the trustee to foreclose the trust deed upon the property involved.

Article XI .of the trust deed provides:

“ . . . The exclusive right of action hereunder (except as herein otherwise provided for) shall be vested in said Trustee until refusal on its part to act, and no bondholder or coupon holder or person making disbursements shall be entitled to enforce these presents in any proceeding in law or in equity (except as herein otherwise provided for) until after demand has been made upon the Trustee, accompanied by tender of indemnity as aforesaid, and said Trustee has refused to act in accordance with such demand. ...”

Plaintiff on this appeal contends that an individual bondholder has the right to maintain a foreclosure, although the instrument itself contains a provision for suit by the trustee. Complainant also contends that a proper interpretation of the trust agreement gives her the right, as a holder of 20 per cent in par value of said bonds then matured and unpaid, to maintain the action..

As to the first proposition, plaintiff’s position might be well taken were it not for the fact that the trust agreement under which she purchased her bonds provides expressly for the manner of foreclosure and places this right with the trustee. Where one purchases bonds under such a trust agreement he is limited and restricted to that agreement, because of the mutual contract and understanding between all the bondholders. It is mutually binding and enforceable only in the manner provided. Pearlman & Co. v. Lincoln-Belmont Bldg. Corp., 251 Ill. App. 135; Kobs v. Kraemer Bldg. Corp. (Abst.), 266 Ill. App. 597.

Article VI of the trust deed contains the following provision:

“It is further covenanted and agreed that in case of default for a period of thirty (30) days in the payment of any coupon or coupons given to evidence the interest on any of said bond or bonds, the holder or holders of said bond or bonds may, at his or their election, immediately upon the expiration of said thirty days, without notice, declare the whole of the principal sum of said bond or bonds, held by such holder or holders, respectively, together with all accrued interest thereon, at once due and payable; and it is further covenanted and agreed that in case of default for a period of thirty (30) days in making payment of any of said coupons, or in case of default in the payment of one or more of said bonds upon the maturity thereof, either by its or their terms or by anticipation of maturity in pursuance of any option or election contained in this trust deed or in said bonds, then the whole of the principal sum secured hereby shall at once, at the option (upon written notice thereof to said party of the first part, his heirs, executors, administrators or assigns) of the holder or holders of twenty per cent in par value of said bonds then unpaid, become due and payable; and in case of default in the performance of any covenant or agreement herein made by the party of the first part, or his heirs, executors, administrators or assigns (other than default in the payment of principal or interest as aforesaid), and the continuance of such default for thirty (30) days after written notice by or through the Trustee (or by the holder or holders of twenty per cent in par value of the bonds then unpaid), to said party of the first part or his heirs, executors, administrators or assigns, of the non-performance of the covenant or covenants or agreement or agreements so broken, then the whole of said principal sum secured hereby shall at once, at the option (upon written notice thereof to said party of the first part or his heirs, executors, administrators or assigns) of the holder or holders of twenty per cent in par value of the bonds herein described then unpaid, become due and payable; . . . ”

This provision gives the holder of bonds the right upon the expiration of 30 days after default to declare the whole of the principal sum of said bond or bonds held by such holder, together with interest, at once due and payable. The complainant had the right under the agreement to seek a partial foreclosure for the satisfaction of complainant’s bonds, but this action is brought to foreclose the entire issue. It is complainant’s interpretation of the trust agreement that foreclosure should be had on demand of the “holders of 20 per cent in par value of said bonds then due and unpaid,” and not 20 per cent of all the bonds still unpaid. Article VI provides that in case of default in payment of one or more bonds upon maturity thereof, either by its or their terms or by anticipation of maturity in pursuance of any option or election contained in this trust deed or in said bonds, then the whole of the principal sum secured thereby shall at once, at the option (upon written notice thereof to said party of the first part, his heirs, executors or assigns) of the holder or holders of 20 per cent in par value of said bonds then unpaid, become due and payable. The bonds that have matured are not the only bonds that are unpaid but the balance of the issue not yet matured is also unpaid. We interpret this section to mean that no single bondholder can bring an action for a complete foreclosure, but must require the co-operation of a substantial number, to wit, 20 per cent of the total issue of unpaid bonds before such, a proceeding can be maintained. If all of the bonds had matured it would become the duty of the trustee upon their request or on the request of any one bondholder to foreclose the trust deed for the satisfaction of the entire issue. If there was a default in any part of the issue then 20 per cent of the bonds even though not in default could demand a foreclosure for all.

The complainant did not comply with the requirements of the agreement by joining with it a sufficient number of bondholders in its demand upon the trustee to institute foreclosure proceedings and the trustee was justified in refusing to proceed until a proper demand had been made in accordance with the trust agreement. Complainant has not complied with the acceleration agreement of the trust deed as contained in Article VI.

For the reasons stated in this opinion, the order of the superior court dismissing the bill for want of equity is affirmed.

Order affirmed.

Hall, P. J., and Hebel, J., concur.