text:
    Lawrence A. Barrett, Appellee, v. Mark Shanks, Appellant.
    Gen. No. 40,370.
    Opinion filed April 26, 1939.
    Rehearing denied May 8, 1939.
    Gustav E. Beerly, of Chicago, for appellant; John F. Diffendeffer, Jr. and Richard T. Savage, both of Chicago, of counsel.
    Concannon, Dillon, Bostelman & Snook, of Chicago, for appellee; R. F. Bostelman and Austin G. Rigney, both of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

Ail appeal is brought in this case together with four companion cases which are similar, all of which grew out of the action of the superior court in entering a summary judgment against the defendant upon a claim alleged to have been guaranteed to the extent of $5,000 each, by twenty-five guarantors, which includes the appellant. The original suit was commenced in 1932.

It appears that on July 8, 1937, an amended declaration was filed, wherein it is alleged that- the Midwest Athletic Club on April 11, 1927, made a promissory note due 90 days after date, payable to the Madison & Kedzie State Bank; that defendants executed and delivered their written guaranty of the full payment of said indebtedness to the bank at maturity and at all times thereafter; that each of the guarantors was liable to the amount of $5,000 and the guaranty was limited to a loan of $75,000 made on April 11, 1927, or any renewal thereof; that various payments were made upon the principal indebtedness; that there remained due from each guarantor $3,128 with interest from October 25, 1930.

To the foregoing was added the common counts, each for the sum of $5,000. To this was added the affidavit of one J. W. Minter which stated that their suit is upon a written contract and that payments have been made thereon, and further stating that as the loan was reduced (by someone) to $46,920 and that on the balance a proportional amount was due from each of the guarantors of $3,128.

Said affidavit further stated that said Lawrence A. Barrett, as successor liquidating trustee for MadisonKedzie Trust & Savings Bank, is the actual bona fide owner of the note of the said Midwest Athletic Club dated September 12, 1930, in the principal sum of $50,000; that said plaintiff is the actual bona fide owner of the certain contract or guaranty agreement dated April 11, 1927 and signed by defendant as is fully set forth in said amended declaration.

To the said amended declaration was filed a plea of non assumpsit on July 23, 1937, and at the same time there was given notice of special matters intended to be relied upon as a defense at the trial. That such special matter relied on is in part as follows:

1. That the execution of the guaranty herein sued upon, was obtained from defendant by the Midwest Athletic Club and the Madison & Kedzie State Bank of Chicago by the use of fraud and circumvention, both of the aforesaid parties colluding to injure and defraud this defendant, before the execution of the guaranty herein sued upon, falsely and fraudulently represented to the defendant that the Midwest Athletic Club had assets of more than $500,000 over and above all its liabilities; that the liabilities of said club, exclusive of its building obligations, did not exceed $25,000; that the guarantors on a principal guaranty of $250,000 given to Foreman & Company had been released; that the Midwest Athletic Club had not borrowed any moneys for which it had pledged as security its accounts receivable due from memberships; that sales of memberships had been made for an amount in excess of $500,000; that the Midwest Athletic Club has passed a resolution authorizing its officers to make the loan of $75,000; and that no part of the $75,000 was for renewal of any previous debt; that each of the aforesaid representations and statements were false, and were known to be false at the time they were made, and that they were made with the intent of defrauding defendant; that defendant not knowing of the falsity of said statements or representations, then and there executed the said guaranty of the debt of the Midwest Athletic Club and delivered the same to the Madison & Kedzie State Bank of Chicago; by reason whereof the said guaranty is null and void, and of no force and effect.

2. That contemporaneously with the execution and delivery of the guaranty herein sued upon, and as part of the same transaction, the Midwest Athletic Club executed and delivered, and the Madison & Kedzie State Bank of Chicago did accept and receive a pledge of security for the payment of the note of $75,000 of the Midwest Athletic Club dated April 11, 1927, said pledge consisting of an assignment to the Madison & Kedzie State Bank of Chicago of all accounts receivable of the Midwest Athletic Club appearing on its books, being for unpaid memberships due or to become due after March 31, 1927, until such note for $75,000 or any renewal of the whole or any part thereof shall have been paid, and the said Madison & Kedzie State Bank of Chicago, their successors and assigns were granted full power and authority for their own use and benefit, but at the expense of the Midwest Athletic Club to ask, demand, collect, receive, compound, and to give acquittance for same or any part thereof in the name of the Midwest Athletic Club; that said Madison & Kedzie State Bank of Chicago did receive the aforesaid security and property from the principal debtor, the Midwest Athletic Club as an indemnity and did collect and receive under said pledge, a sum sufficient to discharge the debt mentioned in the declaration, and by reason whereof this defendant’s liability under the guaranty herein sued upon was extinguished.

3. That the said Madison & Kedzie State Bank of Chicago did receive the security and property mentioned in the preceding paragraph from the principal debtor, the Midwest Athletic Club as an indemnity, and did not exercise proper care and diligence in the management and collection of such collateral security; that by reason of the want of diligence in this respect on the part of the Madison & Kedzie State Bank of Chicago, this defendant has suffered an actual loss in excess of $5,000; by means whereof this defendant’s liability under the guaranty herein sued upon was released.

4. That the said Madison & Kedzie State Bank of Chicago did receive the security and property mentioned in paragraph 2 hereof from the principal debtor, the Midwest Athletic Club as an indemnity, and did not exercise proper care and diligence in the management and collection of such collateral security, but was guilty of waste and want of diligence, and that its action in that regard caused a loss to the defendant in excess of $5,000 and operated to release the defendant from any further liability under the guaranty herein sued upon.

5. That the principal debtor, Midwest Athletic Club paid or caused to be paid unto the plaintiff or its assignor, a sum in excess of the principal indebtedness of $75,000, with accrued interest thereon, mentioned in plaintiff’s declaration herein.

6. That renewals of the indebtedness of $75,000, evidenced by the note of April 11, 1927, and in said declaration mentioned, were made from time to time without the knowledge, consent or acquiescence of this defendant and after the death of one or more of the coguarantors.

7. That the plaintiff is not the actual bona fide owner of the promissory note and the contract of guaranty herein sued upon.

This defense was verified by the affidavit of one Harold L. Eisenstein.

Apparently counsel in this case considered the cause at issue by these pleadings as they then were and on November 5, 1.937, proceeded to take evidence in the city of Washington by depositions, both sides being-present. There appears in the record a stipulation by the parties that the deposition taken of Alfred H. Smith before a commissioner there, could be used in 12 suits which were pending* and which grew out of the same transaction. That deposition appears to have been filed in the office of the clerk of the superior court.

Thereafter it appears that a motion was made for summary judgment which was filed with the clerk of the court. Also, there appears exhibit 1, which follows the affidavit of one E. A. Sherer, other affidavits, exhibits and a decree.

It further appears that a motion was made by plaintiff to strike the defendant’s affidavit of merits and supporting affidavits on the motion for a summary judgment, and a decree was entered striking the same, but nothing, so far as we have been able to find, was said by the court as to the notice of special defenses and the court on this motion found, that plaintiff was entitled to a summary judgment and entered the same against the defendant for $4,316.18 in favor of Lawrence A. Barrett, as liquidating trustee for the Madison-Kedzie Trust & Savings Bank.

It appears in the deposition of Alfred H. Smith, former president of the Madison & Kedzie State Bank, that at the time the guarantor signed, there was assigned by the Midwest Athletic Club, bills receivable of the par value of $135,000, the same being obligations which had been given to the club by purchasers of memberships and said bills were due and payable at the time, or shortly thereafter apparently, the understanding was that these bills receivable were to be collected by the bank and applied upon this indebtedness and it is the contention of the defendant that this was not faithfully done by the bank; that if they had done as originally agreed this obligation would have been paid in full.

Defendant further contends that misrepresentations were made to him at the time as to the financial status of the Midwest Athletic Club; that the assets of the club were more than $500,000 over and above all its liabilities; that the liabilities of the club inclusive of building obligations did not exceed $25,000; that the guarantors on the Foreman & Company guaranty had been released; that the Athletic Club had not borrowed any moneys for which it had pledged its accounts receivable due from memberships; that sales of memberships had been made in excess of $500,000; that no part of the $75,000 to be loaned was for the renewal of any previous debt.

This part of the agreement the defendant says was not complied with and that he was precluded by this action of the trial court from offering any evidence as to the true status of the account between the bank and the Athletic Club and also as to the falsity and materiality of the various representations above set forth, and that the affidavit of Mark Shanks, defendant herein, setting forth these facts was filed in opposition to the motion for a summary judgment.

In Thornton v. Hendrickson, 213 Ill. App. 121, the court at p. 124, said: “A broad inquiry is allowed as to facts and circumstances, which might tend to show the true intent with which an instrument was executed. The trial courts should be liberal in the receipt of evidence in the investigation of questions of fraud, and concerning all matters which tend to disclose the true nature of the transaction. Sometimes very slight circumstances, apparently trivial in themselves, when joined with other facts may afford strong proof of fraud. Bigelow on Fraud, p. 476; Vigus v. O’Bannon, 118 Ill. 334.”

On the question of fraud and defense, we quote from ch. 98, par. 11, sec. 10, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 89.011], which reads as follows:

“1. Fraud.] § 10. If any fraud or circumvention be used in obtaining the making or executing of any of the instruments aforesaid, such fraud or circumvention may be pleaded in bar to any action to be brought on any such instrument so obtained, whether such action be brought by the party committing such fraud or circumvention, or any assignee of such instrument. ’ ’

On the oral argument both counsel stated that a demand had been made by each side, asldng that a trial by jury be had. From the record before us it appears that a summary judgment could not be entered in this cause without the trial judge having decided controverted questions of fact, and passed upon and weighed the evidence which questions should properly have been left to a jury to decide.

In the case of Diversey Liquidating Corp. v. Neunkirchen, 370 Ill. 523, which although a case wherein the validity of a rule of the municipal court regarding summary judgment was involved, it is stated in the syllabus:

“The purpose of a proceeding for summary judgment is to determine whether a defense exists, and where a defense raising an issue of fact as to the plaintiff’s right to recover is set up, a summary judgment must be denied, as it is the function of a jury to decide disputed issues of fact and to try such issue by affidavits would deprive defendant of his right to a jury trial.”

If the plaintiff were not the bona fide owner of the instrument sued upon, as alleged by defendant, defendant should have been permitted to show that fact. Also, if the misrepresentations were made as claimed by the defendant, then, under the statute, such facts were properly pleaded. If the collateral which was assigned from the Midwest Athletic Club to the Madison & Kedzie State Bank as security for this debt, as the defendant claims, had been properly collected and applied to this debt, or if through the bank’s negligence it had failed to do so, to the injury of defendant, the latter should have had an opportunity to show the same.

Other points are raised, but as this case must be tried again, we do not consider it necessary to consider them at this time.

For the reasons herein given the judgment of the superior court is reversed and the cause is remanded with directions to permit the defense to place the cause at issue and to try same before a jury.

Decree reversed and cause remanded with directions.

Hebel, J., concurs, and Bitrice, J., dissents.


source: Caselaw Access Project

author: Mr. Presiding Justice Denis E. Sullivan

license: Public Domain

text:
    Chicago Auditorium Association for use of Mark Skinner Willing. Appeal of Mark Skinner Willing, Appellant, v. Continental Illinois National Bank and Trust Company of Chicago, Appellee.
    Gen. No. 40,384.

      Opinion filed April 26, 1939.
    Rehearing denied May 8, 1939.
    Concannon, Dillon, Bostelman & Snook, of Chicago, for appellant; B. F. Bostelman, of counsel.
    Mayer, Meyer, Austrian & Platt, of Chicago, for appellee; David F. Rosenthal, William D. Doggett and Carl Cohn, all of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

Plaintiff, Mark Skinner, obtained a judgment at law against the Chicago Auditorium Association on November 4, 1931, for the sum of $779,000. Thereafter plaintiff instituted an ancillary suit in garnishment on May 10, 1937 against the Continental Illinois National Bank and Trust Company of Chicago, hereinafter referred to as the “Continental Bank” or the “garnishee. ’ ’

In the affidavit for garnishment it was alleged that the garnishee was indebted to the defendant, Chicago Auditorium Association, or had effects or estates of said association in its hands. One of the questions asked of the garnishee was whether it had a so-called coupon account of undisbursed funds deposited by the Chicago Auditorium Association with said bank or its predecessors, said funds having been deposited originally for the purpose of paying interest accruing on bonds secured by the aforesaid trust deed, dated February 1, 1889, and also accruing on bonds of another trust deed of the Chicago Auditorium Association dated February 1, 1892.

It appears that in 1889, the Auditorium Association created a bond issue in which the garnishee or its predecessor, Illinois Trust and Savings Bank, was the trustee of the trust deed that was issued to secure the bonds and coupons attached thereto and issued thereunder.

All bonds and interest coupons of both issues were made payable “at the office of the Illinois Trust and Savings Bank,” which was the predecessor of the present garnishee.

To the interrogatories the garnishee filed its answer admitting that it held $2,050 in undisbursed funds in a coupon account kept in the name of the Chicago Auditorium Association, but denied that the association had any legal or equitable interest in said funds. The answer further set out that the $2,050 accrued by reason of the failure of holders of an equivalent amount of outstanding interest coupons to present the same for payment. The interest coupons which holders failed to so present became due on various dates over the period from approximately 1890 to August 1,1928.

The cause was tried before a court, a jury having been waived, and the court found the issues in favor of the garnishee and entered an order discharging the garnishee. Plaintiff brings this appeal from that order and contends as follows:

First: The interest coupons were merely made payable “at the office” of a designated bank, being the garnishee. In depositing funds to meet such coupons the Continental Bank became the agent of the Chicago Auditorium Association, which agency was revocable. Thus, upon demand the association was entitled to the return of such funds and the same could be garnisheed.

Second: Either a debtor and creditor or an agency relationship existed as between the Continental Bank and the Chicago Auditorium Association. Under the evidence the Chicago Auditorium Association did not relinquish and surrender all control of the funds deposited nor was there any intention on the part of the association so to do.

Third: No trust existed with respect to the funds deposited to meet interest coupons. To establish such a trust there must be unequivocal language to show an intention on the part of the Chicago Auditorium Association to create the same. Such unequivocal language is entirely lacking.

Fourth: Under the trust indentures the Chicago Auditorium Association was not obligated to deposit funds with the bank to pay coupons nor was there any agreement, either express or implied, that a deposit of interest moneys would relieve the Chicago Auditorium Association from further liability on such coupons. Since the Chicago Auditorium Association was not relieved from liability by making a deposit, a trust was not established for the benefit of coupon holders.

Fifth: The garnishee bank and its predecessors never agreed to pay over moneys (if deposited) to coupon holders. Thus, the bank never agreed to become a trustee or agent for such holders.

The garnishee contends that it occupies the status of a trustee of the aforesaid funds and that the liability of the Chicago Auditorium Association to interest coupon holders ceased upon the deposit of funds with the bank and that therefore the funds cannot be garnisheed.

The evidence shows that the money was sent by the Auditorium Association to the trustee, now garnishee, for the purpose of paying the amount due at the time on bonds and coupon interest notes secured by the trust deed. In indicating the purpose in sending the money to the bank, there was offered in evidence a letter from the Illinois Merchants Trust Company, the predecessor of the present garnishee and trustee, which reads as follows:

“We acknowledge receipt of your check for $34,375, in payment of the semi-annual interest on the Consolidated Mortgage and the First Mortgage Bonds of your Association.”

We think there is no doubt that the evidence shows that this money was sent by the Auditorium Association to the Continental Bank, the garnishee, for the purpose and with the intention of paying the debt due from the Auditorium Association to the holders of the bonds and interest coupons under the trust deed.

The most recent garnishment case which deals with the rights of the parties and the law applicable thereto, is that of Zimek v. Illinois Nat. Casualty Co., 370 Ill. 572, wherein the court at p. 574, said: “The garnishment process is remedial in nature, designed to reach property belonging to the judgment debtor after ordinary execution has failed. (Wheeler v. Chicago Title and Trust Co., 217 Ill. 128.) It is not a distinct and separate suit, but an additional step in the original action for judgment. (Kelley v. Ryan, 36 Pac. (Wash.) 478.) . . . The statute permits garnishment process against any person ‘supposed to be indebted’ to the judgment debtor. (Ill. Rev. Stat. 1937, chap. 62, par. 1.) This court has recognized the general rule that the indebtedness sought to be garnisheed must be a liquidated sum due without contingency at the date when the answer to the garnishment suit is filed. (Wheeler v. Chicago Title and Trust Co., supra; Capes v. Burgess, 135 Ill. 61.) Usually it must be a claim on which the judgment debtor, himself, could have maintained an action against the garnishee. (Shinn on Attachment and Garnishment, secs. 475-483; 28 Corpus Juris, p. 44.) In the present case it is said the claim is contingent because the casualty company denies that it is liable to Zimek under the terms of the policy of insurance. But defendant misconceives the nature of the contingency contemplated by the rule. A contingent claim is one where liability hinges upon some future event, which may or may not occur; it is dependent upon some condition as yet unperformed. (Grand Lodge I. O. O. F. v. Troutman, 103 Pac. (Kan.) 94.) ... A determination of whether an action of debt or indebitatus assumpsit will lie against the garnishee is merely a convenient test to ascertain whether the claim is liquidated and not contingent. In Capes v. Burgess, supra, where we had occasion to refer to such a test, we held the claim was unliquidated and for that reason could not be garnisheed. ”

In the instant case when the money was sent by the Auditorium Association to the Continental Bank, for the purpose of paying the indebtedness due on its bonds, the owners of those bonds immediately became vested in equity, at least, with a lien upon said money for the payment of their bonds and interest. After having sent the money and it was received by the trustee for the benefit of third persons, the Auditorium Association could not itself recover the money by means of a suit. And, if it could not recover it, the plaintiff in this case has no greater rights than the debtor had itself.

As the Supreme Court said in the case of Carson, Pirie, Scott & Co. v. Parrett, 346 Ill. 252, at p. 257: “The rule is settled in this State that if a contract be entered into for a direct benefit of a third person not a party thereto, such third person may sue for breach thereof. The test is whether the benefit to the third person is direct to him or is but an incidental benefit to him arising from the contract. If direct he may sue on the contract; . . .”

The equities of the unpaid bondholders and stockholders being disclosed by the garnishee, the court did right in taking the same into consideration. It would be inequitable to deprive these unpaid bondholders and interest coupon holders of their money by entering a decision on a proceeding to which they are not a party.

We find nothing in the decision of the trial court which should be disturbed and for that reason the judgment of the superior court is hereby affirmed.

Judgment affirmed.

Hebel and Burke, JJ., concur.


text:
    Ella L. Stevens, Appellee, v. William T. Blue et al., Defendants. Appeal of Charles H. Albers, Receiver of Lincoln Trust and Savings Bank, Appellant.
    Gen. No. 40,414.
    Opinion filed April 26, 1939.
    William J. Flaherty, of Chicago, for appellant; James Conger and Donald H. Haider, both of Chicago, of counsel.
    Stevens & Carrier, of Chicago, for appellee; Geo. M. Stevens and Geo. M. Stevens, Jr., both of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

It appears from, the record and abstract in this case that this suit arose out of a creditor’s bill filed by the plaintiff Ella L. Stevens. The original complaint was amended twice.

It further appears that on November 29,1933, plaintiff recovered a judgment at law against the defendants to William K. Blue and Phillip State Bank and of $15,188, on which execution was issued against the property of said defendants; that said execution was thereafter returned' wholly unsatisfied and that the judgment is still in full force and effect.

Plaintiff’s judgment was based on four promissory notes given to her by the defendants, William T. Blue and Lydia L. Blue on February 8,1929. Plaintiff alleges that since said date said defendants Blue have put out of their hands, name or possession, by pretended sale, or otherwise, other real and personal property for the purpose of hindering, delaying and defrauding plaintiff of her judgment; that property of said defendants is held in secret trust by persons to whom the same has been transferred, upon a private understanding or agreement; that such property, or some interest therein, belongs to or shall inure to the benefit of said defendants. That such fraudulent conveyances or transfers were so made by said defendants to William K. Blue and Phillip State Bank and Trust Company.

It further appears that on February 14, 1935, an amended complaint was filed and leave was given that the Chicago Title and Trust Company, as trustee, and William L. O’Connell, as receiver of the Lincoln Trust and Savings Bank, be made additional parties defendant.

The amended complaint in substance states that on December 21,1931, the defendants William T. Blue and Lydia L. Blue, executed their principal promissory note in the sum of $15,000, payable to their order, and by them indorsed and delivered to George W. Blomgren, the then receiver of the Lincoln Trust and Savings Bank. To secure said note, said defendants executed a trust deed to the Chicago Title and Trust Company, which deed was recorded on December 24, 1931, as Document No. 11023597, conveying certain real estate in said complaint described. The plaintiff charges that the note and trust deed in question are held by the defendant, William L. O’Connell, as receiver of the Lincoln Trust and Savings Bank, and charges that no consideration was given to the defendants, William T. Blue and Lydia L. Blue, or either of them, for said note and trust deed, and asks that the defendant, William L. O’Connell, as receiver of the Lincoln Trust and Savings Bank, be ordered to deliver up and cancel the trust deed recorded as Document No. 11023597, the note secured thereby, and that the property in said trust deed be released of record from the lien of said trust deed.

On March 7, 1935, William T. Blue and Lydia L. Blue filed their answer in which they deny that they have real estate, or an interest therein, or any personal property which they keep concealed, or of which title is held by others in trust for them, which the plaintiff was unable to reach by execution.

Further answering defendants admit that on January 20, 1932, they were the owners in fee simple of property described in said complaint, and that by deed of trust they conveyed said property to the Phillip State Bank and Trust Company, but defendants deny that said conveyance was fraudulent or made for the purpose of concealing property, and deny that said property should be sold and the proceeds applied in satisfaction of plaintiff’s judgment.

Further answering defendants deny that they were insolvent at the time of said conveyance, or shortly thereafter became insolvent and deny that the plaintiff is entitled to any of the relief prayed for.

A receiver was appointed for the real estate in question and filed an answer to the amended complaint on April 11, 1935, in which they neither admit nor deny the allegations of the complaint, but ask for strict proof thereof.

Further answering the defendant-receiver denies the charge as contained in the last sentence therein, which reads as follows:

“Plaintiff is informed and believes and charges the fact to be that no consideration was ever given to defendants, Williams T. Blue and Lydia L. Blue or either of them for said note and trust deed.” but says that a good, valuable, and subsisting consideration was given to said defendants for said note and mortgage in the sum of $15,000, delivered by said defendants to George W. Blomgren, as receiver of Lincoln Trust and Savings Bank.

In their answer to the amended complaint William T. Blue and Lydia L. Blue admit that on December 21, 1931, they executed their principal promissory note in the sum of $15,000, payable to themselves and by them indorsed and delivered to George W. Blomgren, as receiver of the Lincoln Trust and Savings Bank; that to secure said note the defendants executed a trust deed to the Chicago Title and Trust Company, which was recorded on December 24, 1931 as Document No. 11023597, in which deed the property described in said amended complaint was conveyed to the Chicago Title and Trust Company, as trustee.

Defendants further answering stated that they did not know whether said note and trust deed are now held by the defendant William L. O’Connell, as receiver, and admit' that they received no consideration for said note and trust deed.

The amended answer of defendant William L. O’Connell, as receiver of the Lincoln Trust and Savings Bank, to the amended complaint was filed August 2, 1935, and in substance stated that said defendant-receiver denies the allegation that complaint is not exhibited iii collusion with defendants and says that plaintiff is related to defendant William T. Blue and that bill is filed in collusion with said defendant.

Further answering said receiver admits that on December 21,1931, the defendants Blue, made their promissory note of $15,000, and trust deed, as described in paragraph 12 of the amended complaint and admits that said defendants delivered said notes and trust deed to George W. Blomgren, the then receiver of the Lincoln Trust and Savings Bank; denies that no consideration was given to the defendants for said note and trust deed, and says that said note and trust deed were delivered as additional collateral security to the indebtedness of William T. Blue to the bank; that the defendant William T. Blue, on February 8, 1931, for money loaned to him by said bank, executed and delivered to the bank his note of that date in the sum of $13,000, payable in 90 days; that thereafter said William T. Blue borrowed money from said bank, and to evidence said indebtedness executed and delivered to the bank the following described promissory notes: Note dated February 17, 1931, in the sum of $2,100, payable 90 days thereafter; note dated March 11, 1931, in the sum of $7,000, payable 90 days thereafter; note dated March 16, 1931 in the sum of $2,500, payable 90 days thereafter; that all of said notes were payable to the order of said bank, and contained a collateral agreement executed by William T. Blue under which certain collateral securities were deposited with said bank by the defendant as security for said notes.

The collateral agreements attached to said notes provide, among other things, that in case the bank should at any time be of the opinion that said collateral had declined in value, or the bank should feel insecure, then in all or any of such cases the bank might, in its discretion, call for additional security satisfactory to it.

None of the above described notes were paid, and the bank ceased doing business on or about May 22, 1931. George W. Blomgren was appointed receiver and continued as such until September 23, 1933, and that the defendant William L. O’Connell was appointed and duly qualified as such receiver, to succeed George W. Blomgren, and that said defendant is now the acting receiver of said bank; that the above described notes executed by William T. Blue came into the possession of George W. Blomgren, as such receiver, and thence into the possession of this defendant as receiver.

Prior to December 21, 1931, the notes of the defendant William T. Blue, being past due, George W. Blomgren, as receiver, demanded that said defendant William T. Blue, furnish additional security for said notes, and that William T. Blue agreed so to do, and further agreed to give as additional collateral security a $15,000 note and interest notes executed by himself and wife, and secured by a trust deed conveying a certain lot 6 in block 2 in J. M. Jones’ Subdivision and more particularly described in said amended complaint; that in pursuance of said agreement, William T. Blue on December 21, 1931, executed the principal promissory note and interest notes described in said complaint and trust deed of even date therewith; that on or about December 23, 1931, William T. Blue delivered said principal note, interest note and trust deed to George W. Blomgren, as receiver, as additional collateral security for the indebtedness of William T. Blue and that George W. Blomgren, as such receiver, accepted said note, interest notes and trust deed as such additional collateral security.

That the defendant, as such receiver, is now the holder and owner of said principal promissory note of $15,000, interest coupons, and the trust deed securing the same.

Defendant denies that the plaintiff is entitled to have said note, interest notes, or trust deed, surrendered up or canceled, or to have said trust deed released, and denies that plaintiff is entitled to any of the relief prayed.

An amendment to the amended complaint was filed September 16, 1935, by adding to paragraph 12, .the following: “but that said note and trust deed were delivered to said George M. Blomgren, Receiver of the Lincoln Trust and Savings Bank, and accepted and held by him in accordance with the terms and provisions of a certain agreement between him and said Blues embodied in a letter dated December 29, 1931,

"

The matter was referred to a master in chancery who found for the plaintiff and ordered that the trust deed held by the receiver be canceled and the notes delivered up. The master’s report and supplemental report were approved and confirmed and all the exceptions thereto were overruled by the court.

In the decree entered by the court the defendant William L. O’Connell, receiver of the Lincoln Trust and Savings Bank was ordered to cancel and deliver up to plaintiff’s attorneys the promissory note dated December 21, 1931, executed by William T. Blue and Lydia L. Blue in the sum of $15,000, together with the trust deed executed by said parties; that the Chicago Title and Trust Company, grantee in said deed, executed and delivered to plaintiff’s attorneys its release deed covering said property; that there is due to plaintiff on said judgment, including costs, from the defendants William T. Blue and Lydia L. Blue, the sum of $18,556.20. Herbert H. Mitchell, receiver of the real estate in these proceedings, is ordered to turn over to plaintiff’s attorneys net proceeds in his hands, to be applied by plaintiff upon payment of plaintiff’s costs, including master’s fees, and upon the satisfaction of plaintiff’s judgment to take plaintiff’s attorneys’ receipt therefor. Defendants William T. Blue and Lydia L. Blue, are ordered, within 15 days after the approval of Herbert H. Mitchell’s report and account, as receiver, showing payment of the net proceeds to plaintiff’s attorneys, to pay said attorneys the balance due said plaintiff as found by the decree, together with interest from the date of the decree; that if said defendants default in making payment, as aforesaid, Herbert H. Mitchell, as receiver, shall, pursuant to further order and direction of the court, make sale of the premises described in the trust deed to secure the $15,000 note executed by the defendants, William T. Blue and Lydia L. Blue, or such part as may be necessary to pay the amount due, subject to prior liens, at public sale, to the highest bidder for cash, with the right to the plaintiff to bid in all, or part, of said properties. Said sale to be made after the giving of public notice thereof by publication. Said Herbert H. Mitchell, as receiver, is authorized to issue a certificate of purchase to the purchaser, and out of the proceeds of the sale to pay, first, the costs of this proceeding and the costs and expenses of sale; and secondly, to pay to plaintiff’s attorneys the sum of $18,556.20, or such balance as may be due thereon, together with interest and costs, the surplus, if any, to be delivered to the defendants William T. Blue and Lydia L. Blue.

The decree further stated that the court retains jurisdiction of the parties, matters and issues in this proceeding, for the purpose of continuing the receiver in office, for the purpose of enforcing collection and protection of any title or lien covered by the decree, and for the purpose of ordering and directing the sale of the premises involved herein by the receiver.

From this decree of the circuit court an appeal has been perfected to this court by Charles H. Albers who was appointed as receiver of the Lincoln Trust and Savings Bank, owing to the death of the said William L. O’Connell, the former receiver, and asks that the decree of the circuit court be reversed and the suit dismissed as to said receiver for want of equity.

The evidence shows that William T. Blue was indebted to the Lincoln Trust and Savings Bank in a sum upwards of $12,000 which was evidenced by three notes — one for $2,100, dated February 17, 1931, one for $7,000 dated March 11, 1931, and one for $2,500 dated March 16, 1931, all of which were payable 90 days thereafter.

The evidence further shows that the collateral agreement attached to said notes provided, among other things, that in case the bank should at any time be of the opinion that said collateral had declined in value, or should the bank feel insecure, then in all or any such event, the bank might in its discretion call for additional security which would be satisfactory to it.

The evidence further shows that when Blomgren was the receiver, he endeavored to get Blue, the maker of said notes, to pay them and after several negotiations they worked out an agreement by which Blue was to give additional security for the notes and, Blue being the owner of some free and clear real estate, he agreed to put a mortgage on it for $15,000 and gave it to Blomgren. Blomgren was to sell the notes and mortgage and apply it on Blue’s indebtedness to the bank. That is the note now held by the receiver. Blue claims that he wrote a letter to Blomgren which set forth their agreement and which reads as follows:

“Dec. 29th, 1931

“Mr. George W. Blomgren, Receiver Lincoln Trust & Savings Bank, S. E. Cor. Lincoln Ave. & Irving Park Blvd. Chicago, Illinois.

“Dear Mr. Blomgren:

“In my depositing with yon a first mortgage trust deed,- principal note and ten interest coupons in the amount of $15-,000.00 on my property situated at 929-31 Edgecomb Place, Chicago, it is understood that you are to dispose of this security together with a $5,000.00 first mortgage on the property situated at 2168 Warner Avenue and a $4,000.00 first mortgage on the property situated at Lot 17 in Orchard Beach, McHenry, Illinois (the latter two now up as collateral in this Bank) to the highest bidder for cash and allowing not over 5% discount or penalty to me on the cashing in of these securities.

“It is also understood and agreed that the cash returns, (less the 1929 and if necessary the 1930 taxes to be deducted together with the expense of procuring an Owner’s and a Mortgage Policy and recording fees) are to be applied to my indebtedness in this Bank and a reasonable portion of the other collateral in your hands to be returned me. However, it is my desire that you have ample security for the balance of my indebtedness.

“Very truly yours, Wm. T. Blue

“WTB:W”

Blue contends that Blomgren told him that he could sell the notes and mortgage within five days. This Blomgren denies. It is apparent from a reading of the letter which we have just quoted that it does not sustain Blue’s statement, although he says in it is incorporated his agreement with Blomgren. When the receiver attempted to cross-examine Blue as to what certain ambiguous portions of the letter meant, objection thereto was sustained by the master, and wrongfully, for the reason that the letter by itself leaves much to be explained.

Apparently the rulings of the master, which in this appeal plaintiffs and defendants Blue now try to sustain, were based upon the theory that the letter in evidence is a contract under seal and cannot be changed in any way by parol evidence. This letter was not answered by the receiver. The letter is ambiguous, it does not purport to recite the entire understanding, and questions asked in an endeavor to have the letter explained should have been permitted. The master and court erred in denying such evidence to be given. See Wigmore on Evidence (2d Ed.) Vol. 5, sec. 2430; MacNeil Illinois Evidence (2d Ed.) Vol. 2, p. 1853; Mason v. Griffith, 281 Ill. 246. Apparently the theory of Blue is that the original notes given to the bank and which he says he desired to pay by giving the notes and trust deed referred to, were without consideration and his testimony tends to support the allegation of the bill that this transaction was done for the purpose of obstructing his, Blue’s creditors. If this theory is true, why then did he execute this $15,000 note and give a mortgage on his real estate, which was free and clear, in order to satisfy the bank regarding the payment of such notes which he allegedly gave without consideration?

It is quite evident from this record that the purpose of giving the notes of $15,000 was to provide the receiver with additional security for Blue’s indebtedness to the bank and to which the bank was entitled under the terms of the notes then in the possession of the receiver, and further to have the receiver refrain from commencing a foreclosure suit or entering judgment on such notes. This was a valid consideration and amply sufficient.

By the terms of the notes and trust deed covering the original indebtedness, the bank and the receiver for said bank had the right to call for additional security and, having done so and having received such additional security and the receiver having refrained from taking judgment on the indebtedness, that was ample consideration for the transaction.

The fact that the plaintiff in this case is the aunt of the defendant Blue has not been developed sufficiently by the evidence to be of importance and we consider it but an incident.

The finding of the master and the subsequent decree of the court was wrong when they held that there was fraud committed between Blue and the bank. So far as we. have been able to find from the record before us, this was an ordinary business transaction and we think the evidence clearly supports the contention of the receiver, and the decree and its findings to the contrary are erroneous.

For the reasons herein given the decree of the circuit court is reversed and the cause is remanded with directions to dismiss the bill for want of equity.

Decree reversed and cause remanded with directions.

Hebel and Burke, JJ., concur.


author: Mr. Justice Burke

text:
    Morton J. May and Tom May, Appellees, v. Florene May Marx et al., Appellees, and Nancy May Straus et al., Appellants.
    Gen. No. 40,237.

      Opinion filed April 26, 1939.
    William H. Haight, of Chicago, for certain appellant.
    William B. Swissler, pro se, and Albert E. Jenner, Jr., of Chicago, for certain other appellants.
    Benjamin F. Goldstein and Herbert L. Hart, both of Chicago, for certain appellee.
    Lewis, Rice, Tucker, Allen & Chubb and Sidney, McPherson, Austin & Burgess, all of Chicago, for certain other appellees.
   Mr. Justice Burke

delivered the opinion of the court.

Florene May arrived at the age of 18 years on February 17, 1921. She was then a resident of St. Louis, Missouri. Under the law of that State, females reach their legal majority at the age of 18 years. On April 27,1921, while a resident of St. Louis, she executed the following trust instrument:

“Know all men by these presents, that I, Florene May, desiring to preserve my property so that it may be continuously and safely invested and desiring to secure to myself thereby a safe, steady and permanent income, and in consideration of the premises and One Dollar ($1.00) to me in hand paid by my brothers, Morton J. May and Tom May, receipt whereof is hereby acknowledged — and the acceptance by them of this Trust, do hereby transfer, assign and deliver to them the property hereinafter mentioned and more fully described in Schedule ‘A’ hereto attached.

“To have and to hold the same unto said Morton J. May and Tom May, their successors and assigns, in trust, nevertheless, to and for the following uses, intents and purposes:

“To hold the same for me and collect all dividends and interest to accrue thereon for the period hereinafter mentioned:

“1. To manage said property, and with power from time to time, at their discretion, to sell same and reinvest the proceeds of said sale, and to invest the income, dividends and interest thereon in high class securities, real or personal.

“2. To pay to me quarterly on the first day of January, April, July and October of each year out of the income, dividends and interest derived from said trust funds Three Thousand Dollars ($3,000.00).

“3. The Trustees to attend all meetings of stockholders or otherwise, which they shall be entitled to attend by virtue of being the holders of shares of stock hereby transferred and assigned to them, and to vote at such meetings in such manner as they deem best.

“4. The Trustees may designate one of their number to be custodian of the trust funds.

“5. This Trust shall continue for twenty-five years from this 27th day of April, 1921, if I shall so long live. Upon my death the trust shall be dissolved and the property shall descend to my heirs, as the law provides.

“In witness whereof, I have hereunto subscribed my name, and the other parties hereto in their capacity as Trustees for the purpose of signifying their acceptance of the Trust herein created, have subscribed their names to three copies hereof, each being an original, this 27th day of April, 1921.

(Signed) Florene May Tom May Morton J. May”

Schedule “A” attached to the instrument, contains a list of securities. On May 18, 1921, by a supplemental trust instrument, the settlor modified the two trust instruments of April 27, 1921. A paragraph of the modified document reads as follows: “I authorize and empower my said Trustees to pay to me the whole or any part of income accumulated by them in excess of the quarterly payments of Three Thousand Dollars ($3,000.00) each in said indenture of Trust provided for, such excess payments to be made to me in such amounts and at such times as in the exercise of their discretion they shall deem proper.” On May 19, 1921, the day after the instrument was modified, she married Martin L. Straus. Two children were born of the marriage, Martin L. Straus III, born October 6, 1923, and Nancy May Straus, born January 31, 1925. On May 1, 1934, a divorce decree was entered, dissolving the bonds of matrimony between them. She married Samuel Marx on April 1,1937. On November 12,1937, plaintiffs, as trustees, filed their complaint in the circuit court of Cook county for the purpose of having the two instruments construed. The defendants, in addition to Florene May Marx, are her presumptive heirs at law, being her two minor children, her husband Samuel Marx, her mother Eosa May, her three brothers and her nieces and nephews. All defendants are of legal age, except the two children. The court appointed a guardian ad litem for the children. The answer of Florene May Marx admitted the allegations of the complaint and alleged that the sole purpose of the trust was to relieve her of the management of the property and not to give anyone other than herself any interest therein; that no other person whomsoever had any interest in any of the income derived from the trust estate during her lifetime, and prayed that plaintiff trustees be instructed that they had power and authority to pay her, in their discretion, all income theretofore or thereafter received by them in excess of $12,000 per year. The answer of the collateral heirs other than the trustees, admitted the execution of the instruments, claimed whatever rights they had thereunder, and joined in the prayer of the complaint for their construction. The answer of the minor children of Florene May Marx by their guardian ad litem, alleged that they had no information concerning the allegation of the complaint, submitted their rights and interests to the consideration and protection of the court, and demanded strict proof of the allegations of the complaint. In the trial court, the trustees assumed a wholly impartial attitude. The contest on the issues was between Florene May Marx on the one hand, and the guardian ad litem of her minor children and collateral heirs, on the other. The court decreed that the trustees had power and authority, in their discretion, to pay Florene May Marx, in addition to the quarterly income payments aggregating $12,000 per year, the whole or any part of the income derived from the trust estate and theretofore accumulated by the plaintiffs as trustees, and the whole or any part of the income which might thereafter be received by the plaintiffs as trustees. This appeal is prosecuted by the guardian ad litem and the collateral heirs for the purpose of reversing the decree.

The theory of Florene May Marx is that the words in the trust instrument of April 27,1921, directing that in the event of her death prior to the termination of the trust, the corpus of the trust “shall descend to my heirs, as the law provides,” were words of limitation and not of purchase, and created no remainder interests, contingent or otherwise, in any of the defendants ; that therefore, she was the sole beneficiary of the trust, and as such, had the power to modify or revoke without the consent of any other person.

The theory of appellants is that the words “my heirs, as the law provides,” were words of purchase and not of limitation, and created a contingent remainder in her heirs at law, and therefore the original trust instrument was not legally modified by the supplementary trust of May 18, 1921, since the contingent remaindermen did not and could not consent thereto. In Perry on Trusts and Trustees (6th Ed.), sec. 104, p. 132, it is said:

“A trust once created and accepted without reservation of power can only be revoked by the full consent of all parties in interest; if any of the parties are not in being, or are not sui juris, it cannot be revoked at all. It is perfectly clear that where the settlor did not misapprehend the contents of the deed, and there was no fraud or undue influence, and no power of revocation was reserved, the settlor is bound though some contingency was forgotten and unprovided for.” In the instrument we are considering, no express power to revoke or modify was reserved. Defendants invite attention to the fact that the first trust instrument vests the trustees with power to manage the property, to sell the same and reinvest the proceeds of the sale, and to invest the income, dividends and interest in high class securities. They also call attention to the part of the preamble which recites that the sole object of the trust insofar as she, the settlor, was concerned, was “to secure to myself a safe, steady and permanent income.” Defendants say that a complete full legal title in fee to the trust estate was given to the trustees and the settlor retained only an equitable estate, and argue that appellants, who are members of the class of “heirs as the law provides” of settlor, necessarily acquired their interests in the trust estate under the trust instrument, and not by “descent” through her. If, by the original trust instrument, appellants acquired a contingent remainder, it is manifest that their rights could not be affected by the subsequent instrument. Defendants emphasize the point that the trustees were given the full legal title in fee, with the right to sell, and maintain that if the interests of defendants in the trust estate arose solely by virtue of the trust instrument, then they took by purchase and not by limitation. The authorities which have considered this problem have first determined whether or not absolute legal title was conveyed to the trustees, and if such title was conveyed, have reasoned that any interests in the trust estate given to persons other than the settlor must necessarily have been acquired by purchase under the trust instrument rather than by limitation through the settlor as no interest could be acquired through the settlor since he had none, having conveyed or assigned to the trustees.

In the case of Burton v. Boron, 308 Ill. 440, it appears that Edward Boren owned in fee simple an undivided one-quarter of 350 acres of farm land, the other three-quarters being owned by his brother and two sisters. On October 1, 1913, he conveyed by deed of trust to his sister, Hannah E. Burton, his undivided one-quarter interest. The trustee was to pay the grantor all the net income received from the land. The trust deed gave the trustee or her successor power to lease or sell the property and convey the same by proper deed and reinvest the funds in other income producing real estate or loans, and to pay the net income to the grantor. The trust was to continue in force during the life of the grantor and should terminate at his death. Power was given to the trustee to appoint a successor, and in case she did not exercise the power a successor was to be appointed by the court having jurisdiction to do so. The fourth provision of the trust read as follows: “Upon the death of the said Edward E. Boren, cestui que trust, the trust herein created shall cease and terminate, and when said trust is terminated the trust property, as the same may exist at the death of the said Edward B. Boren, whether consisting of real or personal property, shall immediately vest in and become the property of the heirs-at-law of the said Edward B. Boren, cestui que trust herein, and said heirs-at-law shall be entitled to said property under the laws of descent of the State of Illinois then in force.” The trustee accepted and acted under the trust until January, 1922, when she filed a bill for an accounting, tendering her resignation as trustee, and asking that her report be approved, that she be discharged and her successor appointed. Boren answered the bill, admitted the correctness of the account, consented to her resignation and alleged that the reversion in the fee was in him; that the only interest conveyed by the deed was an estate during his life, and that no persons other than the trustee and himself had any interest in the trust property. He also filed a cross-bill and alleged that he was the owner of the reversion in fee, and that no other person except himself and the trustee had any right, title or interest in the property. He prayed that the trust be terminated and that the trustee be required to convey the property to him. Boren had two children and both were living when the proceedings were had. They disclaimed any interest and Hannah E. Burton, the trustee, demurred to the cross-bill. The court overruled the demurrer and she elected to abide by it. The Supreme Court said, p. 442:

“Counsel for appellant argue that appellee parted with all his title and interest in the trust property by the deed to the trustee except a beneficial equitable interest during his life and that the trust cannot be terminated until his death, and when so terminated his heirs, to be then determined under the laws of descent, will become seized of the title to the trust property as purchasers under the deed of trust and not as heirs of appellee under the laws of descent. Appellee contends that the trust deed conveyed an estate to the trustee for and during the life of the grantor but the reversion in fee is in him, and that no other person than himself and the trustee have any interest in the trust property, and it was proper for the court to terminate the trust by its decree.” It will be observed that the contentions are virtually the same as the contentions of the parties in the instant case. In the Burton trust instrument, as in the one before us, the trustee had the right to sell the property and reinvest the funds. Nevertheless, the court sustained the decree holding that the language constituted words of limitation and not of purchase. In the Burton case, the court continued, p. 442:

“There can be no question that under the decisions in Akers v. Clark, 184 Ill. 136; Biwer v. Martin, 294 id. 488, and Hobbie v. Ogden, 178 id. 357, the provision in clause 4 that on the death of appellee the property should immediately vest in and become the property of his heirs entitled to it under the laws of descent conferred no estate in remainder or of any other character on the heirs of appellee, or those who would be his heirs upon his death. In the Akers and Biwer cases it was held that where a grantor conveys a life estate with a remainder over to his heirs, the heirs do not take a remainder at all. The words 'heirs’ will be regarded as defining or limiting the estate which the first taker has. In such case the heirs would take as reversioners by descent from the grantor and not under the deed. (1 Tiffany on Real Prop. sec. 130; 2 id. sec. 487.) The children of appellee disclaimed any interest in the property, but it is clear from the decisions they had no interest, and never will have except as reversioners by descent from appellee. No other persons being interested in the trust except appellant and appellee, the question for decision appears to be narrowed to whether the court erred in terminating the trust.

“This court has held that where all the parties are capable of acting and desire a trust terminated, a court of equity may decree its determination. Appellant, the trustee in this case, does not wish to longer act in that capacity, tendered and requested the court to accept her resignation, and asked to be relieved from any further duties or responsibilities and that someone else be selected to act in her place. Appellee consents to the acceptance of appellant’s resignation as trustee. So far as the interests of the children, or heirs of appellee are concerned there is no obstacle in the way of a termination of the trust. Appellant contends appellee parted with all his interest by his deed to the trustee except the beneficial use of it during his life and for that reason the trust cannot be terminated. Under the decisions of this court referred to, he still has the reversion in fee, with right to grant it away. The trustee has no beneficial interest in the continuance of the trust.

“This case is unlike Lawrence v. Lawrence, 181 Ill. 248, where the trust deed directed the trustee to convey the property to the heirs of the creator of the trust. The court in that case held the trustee took whatever estate was necessary to enable him to carry out the trust, — even a fee simple, if required. In the case here under consideration the trustee was not directed to convey to the heirs. Whatever estate the heirs of appellee received would be by inheritance. The trustee was not required to sell the land and distribute the proceeds, but she was given authority to sell and hold the money received in trust or reinvest it in other property on the same terms and conditions, but it was left to the judgment and discretion of the trustee whether to sell or not. Except a small tract sold by the trustee, and as to which no question is raised, the trustee has never exercised the power to sell. She is the sister of appellee and has appealed from the decree. In her brief she says she has no pecuniary interest in continuing the trust and desires to be released from its duties. She says her appeal is prosecuted solely for the purpose of defending the trust and for the protection of herself and her estate from any possible action of the heirs-at-law of appellee after his death.”

In view of the fact that the instruments in the instant case were executed in the State of Missouri, both parties have emphasized decisions rendered by the Supreme Court of that State. In the case of Stephens v. Moore, 298 Mo. 215, the trust instrument provided that “upon my death this trust shall terminate and the trust shall pass to and vest in my legal heirs, was may be directed by my will.” The court found it was necessary for it to determine whether the settlor disposed of the entire fee “or in other words, whether, he divested himself of the reversion expectant upon the termination of the trust for his life.” The court said :

“It is accepted as one of the dogmas of the common law that, if one makes a limitation to another for life, with a remainder over, either mediately or immediately, to his heirs or the heirs of his body, the heirs do not take remainders at all, but the word ‘heirs’ is regarded as defining or limiting the estate which the first taker has, and his heirs take by descent, and not by purchase. . . . It is the generally accepted rule that, where there is a grant to one for life, with remainder to the heirs of the grantor, there is in fact no remainder; for the limitation, though denominated' a remainder, continues in the grantor as his old reversion and does not devolve upon his heirs as purchasers, as it would if it were a remainder, but as his heirs. . . . When the deed involved in this proceeding is considered as a whole, it seems very clear that the grantor had no thought of making a disposition of his estate to take effect at his death. The sole purpose was to provide for the handling and managing of his property during his own lifetime. The words, ‘and the trust shall pass to and vest in my legal heirs, or as may be directed in my will, ’ is a mere statement, by way of further limitation of the trustee’s estate.”

Defendants call attention to the statement of the Missouri court in the Stephens case that it was “not necessary to take an estate of inheritance in order to enable him to perform all of the duties imposed upon him by the trust,” but we do not deem that the language is controlling. It is apparent from the briefs that counsel on both sides made a thorough search of the authorities. We observe that the subject matter is touched on in the recent case of Fleming v. Dillon, 370 Ill. 325. We have examined the opinions and text books cited. However, no useful purpose will be served by a discussion of the distinguishing features of the recorded decisions. The determination in each case depends on the intent of the settlor as disclosed in the language used in the instrument. A careful consideration of the authorities and of the arguments presentéd by the respective parties convinces us that the defendants did not acquire any interest by virtue of the instrument of April 27, 1921. Florene May Marx retained the reversionary interest. Our opinion is that the words in the trust instrument of April 27, 1921, directing that in the event of her death prior to the termination of the trust, the “property shall descend to my heirs, as the law provides, ’ ’ are words of limitation and not of purchase, and that they created no remainder interests, contingent or otherwise, in any of the defendants, and that therefore, she was the sole beneficiary of the trust and as such had the power at any time to revoke or modify without the consent of any other person. It follows that under the instrument of May 18, 1921, the trustees have authority to pay, in their discretion, to Florene May Marx all income received by them in excess of the required quarterly payments.

For the reasons stated, the decree of the circuit court of Cook county is affirmed.

Decree affirmed.

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