author: Mr. Presiding Justice Shurtleff

text:
    Oscar E. Carlstrom, Attorney General of the State of Illinois, Appellant, v. Charles C. Frackelton et al., Appellees.
    Gen. No. 8,498.

      Opinion filed April 14, 1931.
    Oscar E. Carlstrom, Attorney General, G. E. Nelson, Boyce A. Kidder and S. S. Du Hamel, Assistant Attorneys General, for appellant.
    John M. Smoot, Thomas W. Hoopes and Arthur W. Lillienstein, for appellees.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

This is an action instituted by Oscar E. Carlstrom as attorney general of Illinois, to enforce a charitable trust created for the benefit of the general public under and by virtue of the provisions of the last will and testament of Mary F. Dixon, deceased, late of Menard county, Illinois.

Mary F. Dixon, a resident of Menard county, Illinois, departed this life on May 19, A. D. 1924, leaving no husband, no child or children or descendants of a child or children surviving, but leaving a brother, Henry H. Colby, and J. Colby Beekman and Lucy Robertson, children of a deceased sister, Sarah Beekman, also Lydia Colby, William D. Colby, Alice Colby Ramsey, children of William Colby and William D. Colby, children of Alfred Colby, deceased, who was a son of William D. Colby, deceased; also William Colby Rucker, a son of Mary L. Rucker, a deceased sister, as her only heirs at law.

The said Mary F. Dixon left a last will and testament duly admitted to probate, in which she stated that it was her purpose to build a memorial bridge to span the Sangamon river at a point near what is commonly known as the Old Salem Chautauqua Park in Menard county, Illinois, in her lifetime, for the benefit of the general public, and in the accomplishment of which purpose it was her intention to expend $30,000 for the building and construction of said bridge. She then provided in said will that if, at the time of her death, said bridge shall not have been fully completed and said sum of money fully expended, that the administrator of her estate should pay over to the trustees named in said will, sufficient money, notes, stocks, bonds or other securities of the value to be estimated by such administrator, sufficient to make, with the moneys already expended, the sum of $30,000, and that the property so set aside be given and bequeathed to the trustees named in said will for such specified purpose, fully authorizing and directing the administrator of her estate to pay over to the trustees named said moneys, notes, stocks and bonds sufficient to make the sum of $30,000.

Said testatrix then provided in said will that if, at the timé of her death, the building of said memorial bridge shall not have been commenced, or any part of said sum of money expended, that she thereby gave and bequeathed to Charles C. Frackelton, Harry Schirding and Edward H. Golden, defendants herein, in trust, the sum of $30,000 to be used and expended by them for the purpose of building and constructing said memorial bridge, the design of said bridge and its erection to be under the control of said trustees. It was then provided in said will that the foregoing gift and bequest was made upon the express condition that within five years from the date of her death the board of county commissioners of Menard county, Illinois, or other proper authorities, shall enter into an agreement in writing with said trustees to build and construct suitable approaches at either end of said bridge, and shall cause to be laid out and to be opened up a public highway commencing at some convenient point on the public highway commonly known as the ‘ ‘ Lincoln Trail, ’ ’ running south from the City of Petersburg, Illinois, and extending in an easterly direction across said proposed bridge, and connecting with the public highway east of said Chautauqua Park, said approaches to said bridge and said public highway to be laid out and opened up without cost to said trust fund. It was further provided that in the event the board of county commissioners of said Menard county, or other proper authorities, refused to enter into an agreement in writing with said trustees for the building of the necessary approaches to said bridge, and to cause to be laid out and opened up said public road, within said time, and without cost to the trust fund, then the entire gift, together with the accumulated increase thereon, shall, upon the expiration of said five years from the date of her death, revert to and become a part of her residuary estate, and be conveyed and transferred and delivered by her said trustees to the administrator of her estate with her will annexed. It was further provided by her said will that whenever for any cause, whether by death, resignation or otherwise, the number of trustees therein constituted shall be less than three, that the remaining trustees should appoint a new trustee or trustees, in order to keep the number at three,, and authorized said trustees to execute whatever instruments might be necessary in order to.vest the trust estate in the new trustee or trustees, jointly with remaining one or ones. Said will contained a residuary clause by which the residue and remainder of her estate, both real and personal, which had not been specifically devised and bequeathed, be distributed to her heirs according to the laws of descent of Illinois.

The Old Salem Chautauqua Park referred to in said will is located on the east bank of the Sangamon river, southeast of Petersburg, Illinois. It consists of 52 acres of thickly wooded, partly natural timber, and the remaining area, except the athletic park, is covered with a hard maple grove. There are about 100 summer cottages in said park, part of them owned privately and others owned by the association and rented during the summer season. There are several public buildings, including a summer hotel and large auditorium. There is an artificial lake in this park which affords swimming, boating and fishing privileges. This park offers to the public rare educational and recreational advantages of which thousands of people avail themselves each year. Mrs. Dixon owned one of the cottages at the time of her death and as the provisions of her will evidence, she had a very great interest in the future welfare of Old Salem Chautauqua Park. Across the Sangamon river southwesterly from the Old Salem Chautauqua Park about one-half mile distant on the highway south of Petersburg (State bond issue Route Number 123), referred to in said will as the “Lincoln Trail,” is the Old Salem State Park and the main entrance thereto. It is not uncommon for this park to have several hundred visitors a day viewing the Lincoln memorial. It is now necessary for the general public coming from the south on the Lincoln Trail or State Road 123 and visiting the State Park, and desiring to visit the Old Salem Chautauqua Park, to travel northerly to and through a large portion of the City of Petersburg, thence easterly across the river on the State bridge, thence southeasterly and finally westerly to the Chautauqua Park, a distance of about five or six miles, whereas, if the public highway provided for in said will were opened up for public travel, and the said memorial bridge across the Sangamon river constructed, it would be necessary to travel a distance only of about one mile.

Upon the last will and testament of Mary F. Dixon being admitted to probate, Henry H. Colby, brother of decedent, was appointed administrator with the will annexed. He continued to act in said capacity until December 23, 1926, when he departed this life. Upon his death J. Colby Beekman, appellee herein, a nephew of the decedent, was appointed by the county court of Menard county as administrator de bonis non, with the will annexed, and still holds that position.

It is an uncontroverted fact that Charles C. Frackelton, Harry Schirding and Edward H. Golden, the trustees named in said will, to whom the testatrix bequeathed the sum of $30,000 for the building of said memorial bridge, have never received from said administrator with will annexed, or from said administrator de bonis non, with will annexed, said $30,000; that they or any of them never made a demand for it, or any part thereof; nor did they ever have a meeting to consider ways and means for carrying out said public trust.

It further appears that Harry Schirding, trustee, was openly opposed to the carrying out of the provisions of said trust, and because of his said opposition resigned as such trustee on the 14th day of October, 1927.

Although the will provided that there should at all times be three trustees, and that because of resignation or removal for any cause the number of the trustees was less than three, the remaining trustee or trustees should appoint a trustee or trustees to fill the vacancy, there has never been a trustee appointed to fill the vacancy occasioned by the resignation of Harry Schirding.

It appears that Edward H. Golden, trustee, was attorney for Henry H. Colby, administrator with will annexed, and now is "acting as attorney for J. Colby Beekman, administrator de bonis non, with will annexed, both of which administrators have failed to turn over to said trustees the $30,000 trust fund, the accrued interest, or any part thereof. Said J. Colby Beekman is a residuary legatee and appellee herein.

The five-year period mentioned in said last will and testament of Mary F. Dixon, deceased, and referred to above, expired on May 19, 1929. This bill was filed by the attorney general to the February term, 1929, of the circuit court of Menard county, making the remaining trustees and the residuary legatees, the heirs at law of decedent, parties defendant.

The theory and purpose of this proceeding, as disclosed by the bill of complaint, is that the said bequest to the trustees named in the will with the duties assigned to them, created an active trust; that in view of the facts as stated, Harry Schirding, trustee, having resigned, Edward H. Golden, trustee,.having rendered himself incompetent because of representing interests adverse to the carrying out of said trust, and Charles C. Frackelton, impotent to discharge the trust alone, and in fact all of said persons designated as trustees in said will, having virtually never accepted the trust imposed upon them at any time, that Charles C. Frackelton and Edward H. Golden remaining nominally as trustees, never having formally resigned, should be removed and new trustees appointed, to whom the trust fund' should be delivered by the administrator de bonis non with will annexed, and the time for accomplishing the purposes of said trust be extended.

It appears that subsequent to the filing of said bill of complaint, to wit, on May 5, 1929, about 14 days before said five-year period should elapse, Edward H. Golden, who was nominated as one of said trustees and who is now attorney for J. Colby -Beekman, administrator de bonis non, with will annexed, appeared before the county commissioners of Menard county with a written statement signed by himself and Charles Frackelton, trustee, calling the attention of said board to the provisions of the will of Mary F. Dixon, deceased, and requesting that they enter into a contract in writing in conformity with the provisions of said will for the building of said memorial bridge, opening up a public highway and building approaches to said bridge without cost to the trust fund, as provided in said will, and that said county board did, upon that occasion, in a memorandum in writing, refuse to accept the provisions of said will. A decree was entered finding that the equities of the cause were with the defendants and dismissing said bill for want of equity.

Appellant has brought the record to this court by appeal for review.

Appellant contends in this case that the condition contained in the will is a condition subsequent and that the estate vested in the trustees, while appellees insist that the condition is a condition precedent and never became vested. The bequest for the building of the bridge is a public charity and such bequests are not confined to mere almsgiving or to the relief of poverty and distress, but have a wider signification, and embrace the improvement and promotion of the happiness of man, and a charitable use, where neither law nor public policy forbids, may be applied to almost anything that tends to promote the well-doing and well-being of man socially. Therefore, a public improvement for the benefit of the general public is a charitable trust such as equity will enforce. (People v. Walters Chapter, D. A. R., 311 Ill. 304; Stowell v. Prentiss, 323 Ill. 309; Congregational Sunday School and Publishing Society v. Board of Review, 290 Ill. 180.) And there can be no doubt but that the attorney general of the State, representing the public, is charged with the duty of preventing a breach of a trust for a public charity or of requiring a restoration of a trust fund which has been diverted and not delivered to the trustees of such fund. (McGee v. Vandeventer, 326 Ill. 425, 441; People v. Braucher, 258 Ill. 604; Attorney General v. Illinois Agricultural College, 85 Ill. 516; Hunt v. Fowler, 121 Ill. 269; Attorney General v. Newberry Library, 150 Ill. 229.)

Appellee, to support the doctrine that the condition in the will of testatrix is precedent, cites Maguire v. City of Macomb, 293 Ill. 441, and Richards v. Richards, 303 Ill. 306. In Maguire v. City of Macomb, supra, the court held: “In every instance a condition is to be considered precedent or subsequent, according to the clear intention of the maker to be collected from the whole instrument, and technical words, if any are used, yield to intention. If the language of the whole will shows that the act on which the estate depends must be performed before the estate can vest, the conditions are precedent.”

In Richards v. Richards, supra, the court held: ‘ ‘ The first thing to consider in the construction of this will is the intention of the testator as expressed in the language used by him, and having determined this intention it should be given effect. (Munie v. Gruenewald, 289 Ill. 468.) The language used by Frederick Richards is plain and unambiguous and there is no need for construction. He names the conditions necessary to be performed by his son Charles in order to vest the son with the fee to the lands described, and then provides that if the son does not obtain the fee 'in the manner provided,’ then the fee shall vest in the son’s children.”

In the Maguire case the condition was that the city should accept the gift and within a reasonable time enter into the possession of the lands to be used as a park. In the Richards case the court states: “The language used by Frederick Richards is plain and unambiguous and there is no need for construction. He names the conditions necessary to be performed by his son Charles in order to vest the son with the fee to the lands described, and then provides that if the son does not obtain the fee ‘in the manner provided, ’ then the fee sliall vest in the son’s children. If two or more things are to be done before an estate vests, both or all must be done, otherwise the conditions will not be performed.”

In the case at bar the language of the testatrix expresses a different idea entirely. The trustees could never enter into any contract with a public authority to construct a bridge, unless the trustees were vested with the title to the funds out of which the contract price could be paid, and the express provision of the will is, that in case such a contract is not entered into within five years, the.said fund “shall revert to and became a part of my residuary estate, and be conveyed, transferred and delivered by said trustees to the administrator of my estate. ’ ’ The will is meaningless unless the trustees are vested with the title to the funds.

In the Maguire case and the Richards case the subject of the trust was real estate, and the nature of the condition did not require the title to the lands to pass to the devisees in either case until the conditions had been fulfilled. In the case at bar the subject of the trust was personalty, which the testatrix devoted to an active, charitable trust and the trust could only become active by vesting the trustees with the title to the funds. The language of the will is: “and the property so set aside I give and bequeath for said purpose to the trustees hereinafter named.” The condition follows in a later and disconnected clause. In the Maguire case and in the Richards case in the language of the will the testator was dealing directly with the beneficiary. In the case at bar the testatrix, in the language of the will, was dealing with the general public through the intermediary of trustees, which required affirmative^ action on their part. Where trustees are required to hold the legal title to property in order to perforin certain duties set forth in the instrument creating the trust, the trust is active and not executed by section three of the Conveyance Act, Cahill’s St. ch. 30, 1f 3, which reenacted the substance of the statute of uses. (Kathman v. Sheehan, 332 Ill. 280; Emery v. Emery, 325 Ill. 212.)

The Supreme Court in the case of Corson v. Thornburn, 323 Ill. 338, very clearly distinguished these two estates and illustrated the difference in the language employed in creating them by will. On page 341 of the opinion in this case the court said:

“Whether a remainder is vested or contingent depends on the language employed. If the conditional element is incorporated into the description of or into the gift to the remainderman then the remainder is contingent; but if, after words giving a vested interest, a clause is added divesting it, the remainder is vested. (Lachenmeyer v. Gehlbach, 266 Ill. 11; Smith v. Chester, 272 id. 428; Cray’s Buie Against Perpetuities, sec. 108; Kales on Estates and Future Interests,- — 2d ed.- — sec. 345.) Thus, in the case of a devise to A for life, remainder to his children, with provision that if any child die in the lifetime of A the share of such child shall go to those who survive, the share of each child is vested, subject to be divested by its death; but in the case of a devise to A for life, remainder to such of his children as survive him, the remainder is contingent. Under this rule it is clear that the estate created by the fourth clause of the will of testatrix is a vested remainder. The same conclusion is reached by applying another familiar rule, namely, where the enjoyment of the estate or the period of distribution is postponed for the convenience of the estate and not for reasons personal to the devisees the remainder is vested. Northern Trust Co. v. Wheaton, 249 Ill. 606; Thomas v. Thomas, 247 id. 543.”

The testatrix in this case more fully expressed her bequest as follows: “If at the time of my death, the building of said bridge shall not have been commenced or any part of said sum of money expended, I hereby give and bequeath to Charles C. Frackelton, Harry Schirding and Edward H. Golden, all of whom reside in Petersburg, Illinois, in trust, the sum of $30,000, to be used and expended by them for the purpose of building and constructing said memorial bridge. The design of said bridge and its erection to be under the control of said trustees.” This provision, as quoted, bequeathed the sum of $30,000 to the trustees named therein and defined the purpose for which the money should be expended and the duties which devolved upon the trustees. This paragraph stands alone and is complete. There is no condition whatsoever imposed in it in making the gift. It is the opinion of the court in this case that the condition inserted in a later clause of the will of testatrix was a condition subsequent; that the title to the funds was a vested interest, and that it became the duty of the administrator, with the will annexed, at the proper time, at the next term after the completion of one year from the date of the issuance of letters, to settle the estate and to distribute to the trustees the funds bequeathed to them by the terms of said will. This has never been done and substantially the trustees have never performed or attempted to perform any of their duties under said will. The will provided that in the event the board of county commissioners of Menard county, or other proper authorities refused to enter into an agreement in writing with said trustees, etc. This language refutes the construction that the trustees could supinely wait, do nothing and shift the burden of performance upon the board of county commissioners to execute this trust. Frackelton testified in his examination by the court: “From the very first conversation I had with Mr. Golden in regard to the matter it came to. my attention that it was his idea that the board should come to the trustees. I should say that was two or three years after the death of Mrs. Dixon.” Golden disputes this and says he never had any idea about the matter until jiist a short time before the five years expired, which makes his position not as favorable as Frackelton tried to leave it.

One of the trustees named Harry Schirding was opposed from the beginning to the execution of the trust and never did anything to carry it out, but remained a trustee for over three years and then resigned. His place has never been filled. Edward H. Golden, named trustee in the will, accepted the position of attorney for the administrator with the will annexed, and de bonis non, and is still counseling and advising with the administrator and in his behalf, and is presumably from the position the active agent of the residuary legatees, all heirs at law, to assist in preventing the execution of the trust. In this' case the positions of trustee under the will and counselor for the administrator, a residuary legatee, are antagonistic in duties, interests and relationship, and cannot, with propriety, be held by the same person. Mr. Golden should either have undertaken to execute the trust and withheld his services from the administrator or resigned the trust if he sought the other employment.

It is not in this case a question of whether the will of testatrix, as made, was wise or unwise, practical or impractical, beneficial or within the financial resources of the commissioners of Menard county or otherwise. The property belonged to the testatrix and she had the right to do with it as she pleased, so long as she was of sound mind and violated no law of the land. No trustee-under the circumstances can say that he has performed his duty in this matter until he has done every-tiling within his power, honestly and reasonably as a trustee, to see that the trust and its duties have been fully performed and carried out, if it be reasonably possible to carry out and execute the trust. That the county commissioners of the county of Menard were not financially able or deemed it unwise to have the bridge constructed does not answer the bill. The will mentions “or the other proper authorities” with whom the contract may be made. Under this, it would be necessary to consult the State, county, city, town, village, township or road district, where there are such, before it can be said that this bequest is incapable of execution. (Cahill’s St. ch. 121, H 41(1); sec. 41a, Joint Bridge Construction (36a); chapter 121 SmithHurd’s Rev. Stat. 1925, 1927, 1929.) No application was ever made to any governmental authority except the county of Menard to assist in this work. No meeting was ever held by the trustees to even consider the project, and nothing has ever been done to execute the trust. The presentation made to the county commissioners of Menard county a very few days before the five years expired, by one of the trustees, does not bear the ‘ ‘ ear marks ’ ’ of good faith, but accentuates the delinquency of the trustees. A court of equity should not interfere with the action of trustees only so long as the trustee is exercising the discretionary powers conferred upon him honestly and reasonably. (Martin v. McCune, 318 Ill. 585, 590; Fischer v. Butz, 224 Ill. 379.) To this delinquency the residuary legatees have equally contributed by permitting the administrators to withhold the bequest from the trustees and employing one of them as a counselor in their behalf. From these acts it may be said that the testatrix has never had any trustees to carry out her wishes and bequests and the interests of the residuary legatees and the conduct of their administrator has contributed to that result.

That no active, affirmative or substantive fraud has been committed, or that no actual contract or conspiracy has been proven on the part of appellees, does not answer the bill. The administrators and each of them took an oath to “well and truly administer all and singular,” etc., “the said estate” and “to do and perform all other acts required of me by law, to the best of my knowledge and ability,” etc. Neither administrator has done this, under the terms of this will, and could not have done and performed all acts required of him by law-without first consulting the properly constituted public authorities in that regard. In this case the administrators cannot shift the burden to the court which appointed them. The trust in this will is a testamentary trust, over which the county court has no jurisdiction and about which the administrators have no duties except to turn the fund over to the trustees. In place of following the law the administrators have kept the fund, invested and reinvested the same, and have made of their own positions, trustees, de son tort, if there be such a term, and using their own discretion have wrongfully determined that this trust cannot be and shall not be executed. In such a case the law makes the administrator subject to the duties of a trustee.

In Maguire v. City of Macomb, supra, the court further held:

“The law is well settled that where an executor or executrix is charged with the duties which do not properly belong to such officer but to a trustee, such executor or executrix will be held to be a trustee. The testator in this case created a trust for charitable purposes and charged his wife by name with duties properly belonging to a trustee, and the fact that he merely designated her as executrix, without distinguishing the duties imposed upon her as trustee from her duties as executrix, does not amount to a failure to appoint a trustee. She was a trustee in fact. (Kemmerer v. Kemmerer, 233 Ill. 327; Welch v. Caldwell, 226 Ill. 488.) An order of the county court discharging her as executrix is void as to the unsettled portion of the estate.”

The residuary legatees and heirs at law have never made any objection to the conduct of the administrators, who were presumably of their selection, and that they and the remaining trustees are in accord as to the conduct of the administrators, is fairly shown by all being represented by the same counsel in this court. The administrators, residuary legatees and trustees, are all equally responsible in preventing any attempt to execute this trust.

Gifts to charity are looked upon with favor by the court and every presumption consistent with the language used will be indulged in to sustain them. Skinner v. Northern Trust Co., 288 Ill. 229. No one can say from this record but that it is perfectly feasible to execute this trust through the aid of the State, or through the assistance of the local road districts, aided by the Old Salem Chautauqua Park Association and others. As to the county commissioners of the county of Menard, no plan, profiles or specifications were ever presented to them as to the bridge or its approaches, and from this record it is not shown that they, or any of them, ever had any definite information as to the cost of the work. It does appear from the answer of the present administrator, J. Cplby Beekman, that he is related by marriage to the trustee Golden, and that, as a taxpayer, he has always been opposed to the execution of this trust. In this answer he is joined by nearly all of the other residuary legatees. That as a taxpayer in Menard county, J. Colby Beekman is opposed to the execution of this trust is no excuse for withholding these funds from the trustees. Apparently, the taxpayers of Menard county are amply protected. Equity will not permit a public trust otherwise valid, to fail for want of a trustee or trustees, because the trustees designated are incompetent to act. (Stowell v. Pren tiss, 323 Ill. 309; 3 Pomeroy’s Eq. Jur. 3d ed., sec. 1926; 1 Perry on Trusts and Trustees, 6th ed., sec. 45; Wittmeier v. Heiligenstein, 308 Ill. 434; Churchill v. Marr, 300 Ill. 302.) A trustee is required to perform the trust he has undertaken, in accordance with its provisions, and the care and prudence to be exercised by him are those which ordinary men would exercise under like circumstances concerning their own affairs. (Cowles v. Morris & Co., 330 Ill. 11; Wahl v. Schmidt, 307 Ill. 331; Wylie v. Bushnell, 277 Ill. 484; Kaufman v. Loomis, 110 Ill. 617; 2 Perry on Trusts, 6th ed., sec. 914; 3 Pomeroy’s Eq. Jur., 3d ed. 1070.)

In making a charitable bequest, whether the provisions of the will he construed as creating a condition subsequent or a conditional limitation, the fact alone that the time specified in the will for the accomplishment of a charitable purpose has expired will not defeat the charitable gift. (Peek v. Woman’s Home Missionary Society, 304 Ill. 427 (citing with approval Adams v. First Baptist Church, 148 Mich. 140); Lynch v. Melton, 150 N. C. 595; Mills v. Davison, 54 N. J. Eq. 659; In re Pierpont’s Will, 72 Vt. 204; Appeal of Beardsley, 77 Conn. 705; Capen v. Skinner, 177 Mass. 84; Massachusetts Institute v. Attorney General, 235 Mass. 288.) In the case of Peek v. Woman’s Home Missionary Society, supra; also in 293 Ill. 337, 339 and 340, where there was a devise upon a condition expressed, the language of the will was as follows: “In case said society shall not desire to establish said orphanage upon the said premises or shall fail or neglect so to do within three years after my death, or having established said orphanage shall at any.time thereafter for the space of three consecutive years fail to maintain and keep said orphanage in active operation, I direct that this devise to the Woman’s Home Missionary Society shall thereupon become null and void and said' property shall revert to my estate; and I hereby direct that in that case of such reversion such real estate, or the proceeds thereof, shall be divided into two equal parts, one of said parts to be divided among my heirs according to the laws of distribution of the State of Illinois, and the other part to be divided in the same manner among the heirs of my late husband, Frank F. Peek.”

In discussing the provisions of this will the court said in the same case (Peek v. Woman’s Home Missionary Society), 304 Ill. at page 436: “When the provision of the will with reference to establishing the orphanage within three years is read in connection with the entire will, it seems clear that the primary purpose of Mrs. Peek found in this provision of her will was to provide that the society might take the farm for the establishment of an orphanage, and that she did not have in mind the opposition and litigation started by the heirs of herself and her husband, and later on the obstruction by her tenant, Rebuck, in preventing the society from obtaining speedy possession of the farm in order to establish such orphanage, and the ruling of this court on the former appeal that the intent of the testatrix as shown by the will,' — the spirit and not the letter, — should control in reaching a proper conclusion on that question is in accord with the decisions generally in other jurisdictions.” In the same case the court, citing from Mills v. Davison, 54 N. J. Eq. 659, quoted: “ ‘The dominating rule in the construction of deeds and other written instruments is to. so construe them as to give effect to the intention of the parties as far as is permitted by the rules of law. The prefatory words in the habendum in the deed in question are, “upon this express condition and limitation.” In the court of chancery the word “condition” in this sentence wras construed as a condition designed for the benefit .of the grantors, to defeat the estate granted. Such a construction, it seems to me, is contrary to the intent of the grantors in making the gift. ’ ’ ’

Following the above quotation the court in the Peek case said: “It seems clear from a reading of this opinion that the argument of counsel for appellants as to whether the prbvisions of the will created a condition subsequent or a conditional limitation is immaterial, for whether the will created a condition subsequent or a conditional limitation, the court will look with favor on the efforts of the society to comply with the condition.”

Applying the analogy of the above quotations to the case at bar, it seems clear that Mary F. Dixon did not impose the five-year condition upon the trust she created in her will for her own benefit or that of her heirs at law, but that the trustees she had nominated should not be dilatory in the execution of the trust. Five years would have been ample time had the trustees nominated in her will intended from the beginning to carry out the provisions of the trust imposed upon them, either to execute the trust or determine in a bona fide manner that the trust was incapable of execution. It was the intention of the testatrix, as gathered from the entire will, that the general public should enjoy the benefit of the gift she had made.

As stated by the court in the language quoted above, a court of equity does look with favor upon the efforts of a beneficiary to comply with a condition, but this case affords an example where equity should look much more favorably upon the situation than in most cases. There is an important distinction between the instant case and the case of Peek v. Woman’s Home Missionary Society, supra, and the number of leading cases in foreign jurisdictions cited, quoted and discussed in the opinion in that case. In those cases, the charitable gift was made directly to the beneficiary and the beneficiary failed to meet the terms of the condition subsequent or conditional limitation, yet the court of equity granted the relief. In the instant case the bequest is made to trustees for the building of a memorial bridge and the laying ont of a public highway for the use and benefit of the general public. ■ The general public is the beneficiary. There were no duties imposed upon it. It has been guilty of no negligence or failure to meet any conditions. The trustees, nominated by the will creating the public trust, were charged with securing the benefit of this gift for the public. They have practically refused to accept the trust, and the general public, the beneficiary, is seeking through its representative, the attorney general of Illinois, to have the remaining trustees removed and trustees appointed who will accept and discharge the trust. It is plain that equity should much more readily enforce a trust for the use and benefit of the general public, which could not be held culpable for failure to meet any condition imposed upon the gift, and the failure is occasioned by the refusal of trustees to accept the trust in good faith, than where the gift is made directly to the beneficiary, and the question arises as to whether the beneficiary has made a reasonable and honest effort to meet the conditions of the gift.

Appellees have contended in this court that the removal of the present trustees, with an extension of time, would not result in securing the execution of the trust for the reason that the county commissioners and road officials of Menard county would not cooperate. This contention is not only unsound legally, but from the record does not conform to the fact. The bill recites the fact that the Old Salem Chautauqua Association has always, through its officials, been ready to co-operate in securing the right of way for said highway and assisting in carrying out the conditions of said trust. The witness F. H. Whitney, president of the Chautauqua Association, testified to the willingness of the association and its officers to co-operate, but there were never two of the three trustees named in the will who ever intended to carry out the trust with" whom the Chautauqua Association and its officers could negotiate.

Our attention is called to the wording of the will, which provides that the necessary approaches of the bridge and the right of way be obtained “without cost to the trust fund.” The will does not provide that the county pay for these items: so, in view of the language quoted above, the door is thrown wide open for donations of right of way and donations for cost of approaches and cost of constructing and surfacing the grade. If the proposed highway were opened up without any appreciable expense to the county or its road districts, there is not any reason why the county officials of Menard county should not only be favorable but enthusiastic for the construction of said public highway and memorial bridge.

The defense was interposed by the answers of some-of the residuary legatees that the right of way, bridge and approaches could not be built as provided by said will for less than $50,000. Appellant very effectively met this defense with the testimony of George Burch, chief bridge engineer of the highway department of Illinois, and the testimony of H. D. McCreary, district engineer of the highway department of Illinois. Mr. Burch testified that he had prepared in his office under-his supervision a design of a bridge across the Sangamon river near Old Salem Chautauqua Park, as described in said will, and Mr. McCreary testified that he surveyed and made plans and specifications for the construction of necessary approaches to said bridge and a roadway leading southwesterly from the public road east of Old Salem Chautauqua Park over the site of said proposed bridge to a point on the public highway south of Petersburg, Illinois, known as the “Lincoln Trail”; that said witnesses Burch and McCreary both testified that a bridge built pursuant to the design offered in evidence would cost $30,000 to construct and that the approaches to said bridge, the right of way and the construction of the roadway, as shown by the plans and specifications offered in evidence, would cost in all between $4,000 and $5,000. There is now more than $36,000 in the trust fund in the hands of J. Colby Beekman, administrator de bonis non with will annexed, appellee, so that the' trust fund is more than ample to construct said memorial bridge, according to the proofs.

The remedy for a breach of trust or a failure of the trustees to perform their duty is the removal of the trustees and the appointment of new trustees, who will carry out the provisions of the trust (Martin v. McCune, 318 Ill. 585; Brower v. Callender, 105 Ill. 88). If new trustees are appointed it will be necessary to extend the time for the execution of the trust. In this connection, in Peek v. Woman’s Home Miss. Society, supra, 293 Ill. 348, Mr. Justice Farmer said: “If the heirs seeking to profit by the delay in establishing the orphanage by their own acts and conduct materially contributed to produce the delay, it would seem most unconscionable to allow them to benefit by such acts and conduct.” The court further said in 304 Ill. 427, at page 435, as to when the orphanage should be started: “It ‘should receive a reasonable construction, especially in view of the nature and character of the devise and the devisee, and in determining whether the delay was reasonable and prudent or negligent and unreasonable all evidence throwing light on the question should be admitted and considered.’ ” And in the same case, on page 440, the court further said: “that if such proof, when taken, showed that the delay was caused by the action of appellants or other circumstances which excused appellee, such delay, under a fair construction of the will, would not prevent the society from having title to the farm.”

From all of these authorities and the proofs in this case, we conclude that the public have not forfeited their right to have this trust executed and the public improvement constructed, and that the title to said fund still remains in the trustees to carry out the provisions of the will of the testatrix. Mary F. Dixon, in the making of said will contemplated that after the settlement of her said estate and the distribution of said trust fund to her three trustees, that said trustees would still have a period of three and one-half years in which to enter into a contract in writing with the commissioners of Menard county, or other proper authorities, to build and construct such suitable approaches at either end of said bridge as might be necessary to afford ample means of travel over said bridge, and should also cause to be laid out and to be opened up a public highway commencing at some convenient point on the public highway commonly known as the “Lincoln Trail,” running south from the City of Petersburg, Illinois, and extending in an easterly direction across said proposed bridge and connecting with the public highway east of said Chautauqua Park, said approaches to said bridges and said public highway to be laid out and opened up without cost to said trust fund.

Accordingly, the decree of the circuit court of Menard county is reversed and the cause remanded to that court, with directions to enter a decree removing the three trustees named in said will and in their place to name and appoint three trustees, who will reasonably and honestly execute the terms of said trust, and a decree be entered otherwise as prayed for in said bill of complainant; that the time to carry out the terms of said trust be extended for a period of three and one-half years from the distribution of said/trust funds now in the hands of J. Colby Beekman, administrator de bonis non with the will annexed, and the payment of the same, with accumulations thereto, to the said trustees when appointed.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Shurtlepf

license: Public Domain

text:
    John H. Dowdall, Appellant, v. Hon. Gilbert K. Hutchens et al., Appellees.
    Gen. No. 8,499.
    Opinion filed April 14, 1931.

      John B. Dale and W. L. Mason, for appellant.
    Gilbert K. Hutchens, Pro Se. E. J. Coyle, State’s Attorney, A. B. Johnson and Thomas Henshaw, for appellees.
   Mr. Presiding Justice Shurtlepf

delivered the opinion of the court.

This was an action at law by petition for mandamus filed by appellant against appellees in the circuit court of Greene county to the September term, 1930.

The pleadings in the case consisted of the petition and appellees’ demurrer, which was sustained by the court. The appellant elected to stand on his petition, and a judgment of dismissal was entered.

It is set forth in the petition for mandamus that appellant, John H. Dowdall, was adjudged insane on July 30, 1930, by judgment entered in the county court of Greene county on said date, of which court the appellee Honorable Gilbert K. Hutchens was judge, and the appellee Leven M. Dowdall was at the same time, by virtue of said judgment, appointed conservator of the estate of the appellant, and appellee W. F. Dowdall was the petitioner in the proceeding in the county court in which said judgment was rendered. It appears from the allegations of the petition that the judgment was rendered on July 30, 1930, as aforesaid, during the June law term of the county court and at the July probate term of the county court, both the June law term of the county court and the July probate term of the county court being current at the same time; that on the 29th day of August, 1930, at the June law term, 1.930, of the county court, appellant applied to the county court for a new trial, which was denied bim ; that on October 13,1930, still during the June law term, 1930, of the county court, appellant filed his application to the county court and to the appellee Hutchens as judge thereof, for an appeal to the circuit court of Greene county from the judgment adjudicating him insane; that said appellee Hutchens refused to allow said appeal and refused to fix the bond and security required of appellant on said appeal.

Appellant further states in his petition that said appeal, having been prayed for before the expiration of the June term of the county court, during which term of court the judgment against him was rendered, his application for appeal was presented in due time, and that by reason of the refusal of his application for appeal he is without remedy save by the issuance by the court of a writ of mandamus.

The appellees filed a demurrer on three grounds, the first being in the nature of a general demurrer on the ground that appellant was not entitled under the facts stated to any relief; the second being that the appellant, John H. Dowdall, having, according to the petition, been adjudicated insane, cannot maintain the action; the third being that the appellees Leven M. Dowdall and W. F. Dowdall are not necessary parties.

The question presented below on the general demurrer was, whether or not appellant’s application for appeal to the judge of the county court of Greene county from the adjudication of insanity was presented too late, inasmuch as the current probate term of the county court — that is, the July probate term-adjourned on the day after the adjudication and before the application for appeal was presented, or, whether the appeal should be regarded as having been applied for in due time because adjudication was during the June law term of the county court and that term had not yet adjourned at the time the application was presented.

The circuit court of Greene county sustained the demurrer and appellant having elected to stand on his petition, final judgment of dismissal was entered against him.

The error relied on for the reversal of the case is that the court erred in sustaining the demurrer and in dismissing the petition.

It may be as well to dispose of the minor questions first. Appellees contend that appellant, having been found to be incompetent and insane, is incompetent to commence or bring any action at law. Appellant, under the statute, is given the right to appeal. This right presumes, also, the right to bring any action necessary to compel an appeal. McCullough v. Judson, 327 Ill. 381.

Appellees further contend that appellees Leven M. Dowdall and W. F. Dowdall were not proper parties and, therefore, the demurrer should have been sustained. In actions of mandamus section seven of chapter 87, Cahill’s St. ch. 87, If 7, provides: “If after the filing of any such petition, any other person than the original defendant shall appear to the court to have or claim any right or interest in the subject matter, such person may be made a defendant.” This follows only the general rule of all litigation, that all interested persons should be made parties to the proceeding. Appellee W. F. Dowdall instituted the proceeding in the county court and, of course, is an interested party in the proceeding tó adjudge appellant incompetent and insane. He should defend this proceeding. Appellee Leven M. Dowdall is an interested party, inasmuch as he bases his right of appointment as conservator upon- the judgment from which appellant is attempting to appeal. Neither of the appellees Dowdall should abandon the case to appellee Hutchens, who was a mere constructive actor to enter such order as he was advised by the parties should be entered. We hold in this case that all of the appellees were and are interested parties to the writ of mandamus. Was appellant within his legal rights and period in praying an appeal? The answer to this question is to be determined from ascertaining whether appellant was adjudicated an incompetent person and insane in the county court or probate court of Greene county. The question arises at the outset as to the jurisdiction of the probate court and the county court to adjudicate and determine the question of the insanity of the appellant. The sections of the constitution bearing- upon this question are as follows: Section eighteen of article six as to county courts provides:

“County courts shall be courts of record, and shall have original jurisdiction in all matters of probate, settlement of estates of deceased persons, appointment of guardians and conservators, and settlements of their accounts, in all matters relating to apprentices, and in proceedings for the collection of taxes and assessments, and such other jurisdiction as may be provided for by general law.”

Section twenty of article six provides for the establishment of a probate court in each county having a population of fifty thousand, and provides:

“Said courts, when established, shall have original jurisdiction of all probate matters, the settlement of estates of deceased persons, the appointment of guardians and conservators and settlement of their accounts; in all matters relating to apprentices, and in cases of the sales of real estate of deceased persons for the payment of debts.”

No authority is granted to the legislature to extend the jurisdiction of probate courts as was done in the case of county courts, and the court said in First State Bank of Steger v. Chicago Title & Trust Co., 302 Ill. 77, 83, “This jurisdiction cannot be extended by the legislature to other and different matters than those therein specified.” Under section 175 of chapter 37 (Cahill’s St. ch. 37, 202; Smith-Hurd Eev. Stat. 1929), the legislature provided that county courts should have jurisdiction of probate matters in substantially the same language as provided in the constitution, supra, as to probate courts. The term “probate,” in common usage, is often used with reference to the proceedings incident to the administration and settlement of the estates of decedents (50 Corpus Juris, 423); likewise, in common usage, is often used as applying to any of the incidents of administration. Dibble v. Winter, 247 Ill. 243. In Corpus Juris, vol. 32, page 628, is given somewhat of the law as to jurisdiction over lunatics in the earlier times. “In England, at an early period, the king’s power over insane persons as parens patriae was delegated to the chancellor by an instrument called the ‘sign manual,’ the chancellor acting as the personal representative of the crown, and the authority being exercised by the chancellor alone, and not by the court pf chancery. To save repeated applications to the crown the authority was delegated to the chancellor on his coming into office. The English chancery jurisdiction in lunacy is therefore in theory distinct from the general chancery jurisdiction under the great seal, although, the fact of insanity having once been adjudicated, the chancellor thereafter acts, in the superintendence of the lunatics’ custodians, not under the king’s ‘sign manual,’ but by virtue of his general equity powers. At common law, insane persons v7ere the particular wards of chancery. There has been considerable discussion as to whether those courts which have general equity jurisdiction possess by virtue thereof inherent jurisdiction in lunacy. Many cases hold that in the absence of legislation on the subject courts of general equity jurisdiction may exercise jurisdiction over the person and property of persons of unsound mind. (Dodge v. Cole, 97 Ill. 338), but there are decisions to the contrary. However, at the present time, the question of jurisdiction of lunacy proceedings or proceedings for the appointment of committees or guardians is regulated by statute, both in England and in the United States; and in accordance with these provisions it may be exercised by particular courts therein designated, as for instance, courts of chancery, circuit courts, county courts, district courts, probate courts, and courts of record having general original jurisdiction; but it must be exercised by a court on whom it has been conferred. In some jurisdictions it is held that, where the power to appoint guardians has been conferred on courts other than courts of chancery, the power is cumulative and concurrent with the court of chancery. On whatever court the authority is conferred, it exercises the power under the same rules as appertain to and regulate the jurisdiction of chancery, subject to such statutory provisions as are contained in the legislative enactments.”

This original jurisdiction in the chancellor and in the court of chancery was recognized in this State in Dodge v. Cole, supra, where the court held, page 354:

“It is conceded that the power exercised by the Lord Chancellor of England, over the persons and estates of lunatics and idiots, was, in early times, when the jurisdiction of the High Court of Chancery was very limited, conferred upon him by special grant from the crown, and was not, except, perhaps, to a limited extent, referable to the general powers exercised by him in his character of Chancellor. We also understand, that in theory of law, the State, in its character of parens patriae, may rightfully exercise the same power and control over the persons and property of lunatics and idiots, that was exercised by the Crown of England through the Lord Chancellor, at the period referred to. We further understand, that under the constitution of 1818, and the statutes in force at the time of the sale in question, the circuit courts of this State possessed original jurisdiction in all matters . . . in chancery, as the same had been previously exercised and understood in the courts of this country and England, having general chancery powers, and that they possessed no other or further powers or jurisdiction.”

It is to be noticed that in the English system, as cited, one jurisdiction determined the question of sanity, whereupon, on being found insane, the chancellor, in the care of his estate, acted by virtue of his general equity powers. In Painter v. Painter (Mo. App.), 228 S. W. 538, the court held: “Const, art. 6, sec. 34, giving the probate court jurisdiction, does not exclude like jurisdiction in the county court by virtue of section 36, giving the county court jurisdiction of all county . . . and such other business as may be prescribed by law.” So we find that at common law the inquest of insanity was determined by the chancellor, acting as the personal representative of the crown and thereafter upon inquest found the estate was managed and controlled under the general equity powers of the court of chancery. In the common law system in England the probate of wills and the settlement of decedents’ estates was under the jurisdiction of the ecclesiastical courts, and we find little in the ancient laws to throw light upon the subject of an inquest of lunacy being a matter of probate; we are left to follow the language of the constitution and the laws of the State as passed by legislative authority.

Under the provisions of the constitution as to probate courts, the court, in Ure v. Ure, 223 Ill. 454, Snyder v. Snyder, 142 Ill. 60, and Sippel v. Wolff, 333 Ill. 284, 291, has held that: “ ‘The jurisdiction of a court of probate over the estate of an incompetent ward is equitable. In this country the probate court exercises the equitable jurisdiction over the property of the insane and mentally incompetent exercised by the English court of chancery. It has power to order that done which is for the best interest of the estate of the ward, and we perceive no good ground for saying that because the election is made personal to the spouse the probate court cannot exercise power to elect for such spouse when the latter is mentally incompetent and is a ward of the court. ’ ” It seems to be held without discussion that the power to appoint a conservator carries with it the implied power to declare a person insane. Under these decisions it cannot be contended but that the probate court or the county court, exercising probate jurisdiction, did have the power to hear this cause. Likewise, under the powers in the constitution conferred upon county courts, the legislature enacted chapter 86 of the Revised Statutes, in which sections one, two and thirty-eight, respectively (Cahill’s St. ch. 86, H 1, 2 and 38), vest the county court with jurisdiction to determine when a person shall be an insane person, who, by reason of unsoundness of mind, shall be incapable of managing and caring for his own estate, and in the later section county courts are vested with jurisdiction to determine when the same person, having had a conservator appointed, shall be restored to his reason. No such acts have been passed conferring jurisdiction upon the probate courts. Section two of the same act provides: “If a person has been adjudged insane or feeble-minded in the county court, the person petitioning the probate court to appoint a conservator of such insane or feeble-minded person may file in the probate court a duly certified copy of the record of the said county court in such proceeding, ’ ’ etc., all of which accentuates the purpose of the legislature to vest the county courts with jurisdiction to hold inquests of insanity. In fact, chapter 85 of the Revised Statutes, which treats of the insane dangerous to themselves or others, gives the jurisdiction over the persons of insane not charged with crime to the county court, by sections three and thirteen. It appears by the petition in this cause that the summons was served upon appellant in the county court on July 26, 1930, and the carise was heard and a trial had upon July 30, 1930, resulting in a verdict and finding that appellant was an insane person and a conservator was appointed. The appointment of a, conservator was immaterial. The finding that appellant was an insane person was the result of the action and the basis of appeal. (Morrison v. Beers, 327 Ill. 139, 141; McCullough v. Judson, 327 Ill. 381, 386.) It is immaterial, of course, that under the contention of appellees appellant had only five days in which to appeal. From the petition in this cause it is impossible to determine whether the petition for inquest of insanity was presented to the court as a court of law or the county court, or to the county court sitting as a court of probate. From the history, its more natural place of jurisdiction would be in the county court under its statutory jurisdiction. The whole question, however, seems to have been settled by statute and construction. Cahill’s St. ch. 37, 11203; section 176 of Smith-Hurd’s Rev. Stat. chapter 37, provides as to probate terms: ‘ ‘ and all matters cognizable at such probate terms shall also be cognizable at the law terms of such courts.” In Callon v. City of Jacksonville, 147 Ill. 113, the city presented its petition for a special assessment to the probate term of the county court, as under the statute it had a right to do. The matter was completed at a law term of the court. It is held:

“The first point made is, that no order having been made expressly transferring the cause in relation to the supplemental assessment to the common law docket, the County Court, sitting as a court of law, had no power over it, and that its order of confirmation was therefore without jurisdiction and void.' In this view we are not prepared to concur. The County Court, when- holding law terms and when holding probate terms, is the same court, and does not constitute two distinct tribunals. True, when holding a law term, it is vested with power and jurisdiction over matters pending before it which it cannot exercise when sitting as a court of probate. And when sitting as a court of law, it has authority to hear and dispose of all matters pending before the court which come within its proper cognizance as a court vested with common law jurisdiction. But it requires no order transferring to it matters already pending in court. They are already before it, and if they constitute matters which properly come within its jurisdiction at a law term, they are, by virtue of the mere fact that they are pending in the court, subject to be disposed of at such term.” And in the same case the court said: “In City of East St. Louis v. Wittich, 108 Ill. 449, it was held that, inasmuch as it is expressly provided by statute that in proceedings for the confirmation of assessments, ‘the hearing shall be conducted as in other cases at law,’ the application can be heard only at a law term, as only at such terms can cases at law be heard. But in Murphy v. City of Peoria, 119 Ill. 509, it was held that, under the statute, the County Court might appoint the commissioners at a probate term, although the final hearing of the application has to be had at a law term. When the law term convened, the application for confirmation in this case was pending in court, and subject to disposition at that term, and it required no order transferring the proceeding from the probate to the law side of the court to give jurisdiction.” -

In the strict language of the statute, the matter being cognizable at the probate term, if it be conceded it was in the probate term, was also cognizable at the law term, and the end of the probate term did not complete appellant’s period in which to appeal. This construction appears to have been given to these various statutes by Mr. Justice Dibell in Pence v. Pettett, 211 Ill. App. 588, and was followed in Knox v. Maher, 254 Ill. App. 626.

The cases cited by appellee do not appear to be in point. In McFarland v. McFarland, 4 Ill. App. 157, the question was not raised. Rittmiller v. Overmass, 189 Ill. App. 73, and Johnson v. Kilpatrick, 250 Ill. App. 416, each arose in counties in which there was an independent probate court established. In Pence v. Pettett, supra, Justice Dibell said:

“This does not create any new or unusual condition, for section 124 of the administration act contains a general provision for appeals differing from that of section 68 in regard to appeals from the allowance or rejection of claims. Until the Probate Court Act was passed, the administration of the estates of deceased persons had been for many years conducted in the county courts and is yet so conducted in most of the counties of the State; yet the County Court Act in section 122 has a general provision for appeals upon appellant giving bond and security in such amount and upon such conditions as the court shall approve.” If the cause in which appellant was tried, even though a probate cause, was cognizable at the law term of the court, the appeal, being a part of said cause, was also cognizable at the law term of the court. If the matter was presented to the county court, as would appear more consonant with reason, appellant’s period to appeal had not expired.

For the reasons stated, the court erred in sustaining appellees’ demurrer to the petition, and the judgment of the circuit court of Greene county is reversed and the cause remanded, with directions to overrule the demurrer and require appellees to answer the petition.

Reversed and remanded with directions.


author: Mr. Justice Niehaus

text:
    Martha Garlock, Appellant, v. Joseph Campbell, Appellee.
    Gen. No. 8,437.
    Opinion filed April 14, 1931.
    Mark A. Penick and Louis C. LaCroix, for appellant.
    W. Emery Lancaster and Paul B. Nichols, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case Martha Grarlock, the appellant, sued the appellee Joseph Campbell in the circuit court of Adams county to recover for work, labor and services alleged to have been rendered by her for the appellee; and that the amount due to her for such work, labor and services is $2,385; and the third count of the declaration alleges that work., labor and services were performed as appellee’s housekeeper. To the declaration filed, in the .case, the appellee filed the general issue and seven special pleas, to which a number of replications were filed. It is not necessary to enter into a discussion or detailed consideration of the pleading which is voluminous and prolix; but it is sufficient to point out for the purposes of this opinion, that vital issue was raised by special plea of the statute of frauds, that the suit involved an attempt to charge the appellee upon an agreement made upon consideration of marriage; which was not in writing nor signed by the party to be charged therewith, nor was there any written memorandum or note of the alleged agreement as required by the statute.

There was a trial by jury in the case; and at the close of the evidence for the appellant, which was her own testimony, the appellee made a motion to strike out her testimony relative to the contract testified to by her for the work, labor and services rendered to the appellee and to direct a verdict finding the issues for the appellee. The court granted the motion and directed the verdict; and the jury thereupon returned a verdict finding the issues for the appellee, upon which judgment was entered. This appeal is prosecuted from the judgment.

Many questions of law are raised and argued concerning the propriety of striking the testimony of the appellant and the legality of the appellant’s alleged contract with the appellee for the labor and service rendered; and the direction of the verdict by the court. We shall consider only those matters which have a direct bearing on the legal propriety of the court’s action.

The appellant testified concerning her contract with the appellee for the work, labor and services involved, as follows: “I am the plaintiff in this suit and instituted the suit under the name of Garlock. I married Joseph Campbell on May 20, 1918, at the city of St. Louis, and remarried him on November 15, 1919, at Palmyra. We were remarried upon the advice of Mr. Leroy Adair because Garlock came to have the divorce, which I obtained from him set aside. I knew Campbell almost a year before I married him. He came to see me, sometimes two or three times a week. We first met at the YWCA where I worked. We talked during this time relative to his farm and his business affairs. These conversations took place about two or three weeks before we were married. ... I had gone away and he asked me upon my return to marry him. I stated to him: ‘Well, Joe, I don’t care much about it.’ He said this: ‘1 have got to have somebody on the farm and it is war time and I can’t get help.’ He asked me out on the farm and he took me out. ... I went with him to the farm and he showed me the farm and what was there. After our return that evening we talked the matter over again and this is what I said to him: ‘I don’t care to marry you and go on the farm to take the place of a hired hand. That is what you want me to do, and the house work too. You know it is hard for a woman to take the place of a man.’ He said: ‘Yes, but I can’t get help.’ He continued to come to see me. ... I told him when he came that I would marry him but he had to give me $20 a week straight during the time I was there, that was the sum I was earning doing my work. He promised. . . . He promised. He said he would give it to me, it was worth that. We were married a few weeks after that. The first time in St. Louis and we went on. the farm to live. . . . The farm is north of town-. When I came on the farm I started doing the house work, cleaning the house. ...”

Concerning the services and work performed, the appellant testified: “I did all the house work, I cooked for all the hired men; I worked out on the farm every day and did my own work and helped him.”

It is clear from the testimony of the appellant, concerning the contract which she entered into with the appellee for the work, labor and service that it was made in consideration of her marriage with the appellee ; and inasmuch as it was not made in writing, it was not valid under the provisions of section 1 of chapter 59, commonly referred to as the “Statute of Frauds,” Cahill’s St. ch. 59, f 1; and the court therefore did not err in striking out the testimony. There is no' other evidence upon which to base a right to recover wages or compensation from the appellee under the averments of her declaration; and the court therefore properly directed the jury to find the issues in favor of the appellee.

It is contended, however, by the appellant that notwithstanding the invalidity of the verbal contract with reference to the work, labor and service rendered, inasmuch as she rendered the service to the appellee and he received the benefit thereof, that an implied promise would arise to pay for the same; and that under the rule of quantum meruit, she would be entitled to recover the value of her services; and furthermore that the evidence shows that the appellee after their marriage repeatedly promised to pay her for those services, the amount agreed upon before their marriage. It is sufficient to say in reference to this contention, that the rule of quantum meruit is not available because the evidence shows that all the work, labor and service performed by the appellant was performed after her marriage with the appellee, and during 'the existence of the marriage relations; that is to say, all the work labor and services were rendered and performed by her as the wife of the appellee. Under Cahill’s St. ch. 68, If 8; section 8 of chapter 68 (SmithHurd) Revised Statutes, “neither husband nor wife shall be entitled to recover any compensation for any labor performed or services rendered for the other, whether in the management of property or otherwise.”

Under this section of the statute, no right of recovery of compensation can be implied nor could be maintained under the rule of quantum meruit under any promise of compensation shown by the evidence. And the statute in effect not only bars a right of recovery of compensation during the existence of the marriage relation but also after the marriage relation has been ended.

For the reasons stated, we conclude that the court did not err in directing a verdict in favor of the appellee, and rendering judgment thereon; and the judgment is affirmed.

Judgment affirmed.


text:
    Goodwine State Bank, Appellant, v. Elmer J. Wise and American Bank & Trust Company, Appellees.
    Gen. No. 8,442.

      Opinion filed April 14, 1931.
    Graham & Dysert, for appellant.
    Jones, McIntire & Jones, for appellees.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case an appeal is prosecuted from the order of the circuit court of Vermilion county, sustaining a demurrer to a creditor’s bill filed by the appellant Goodwine State Bank against the appellees Elmer J. Wise, and the American Bank and Trust Company, and the decree dismissing the bill for want of equity. The bill contains the following averments concerning the facts involved, namely:

“That on or about January 6th, A. D. 1930, the defendant, Elmer J. Wise, was indebted to said complainant on a judgment, for Six Hundred Dollars and Twenty-five cents ($600.25), in the Circuit Court of Vermilion County, Illinois, which is still in full force and unpaid, together with Five Percent (5 per cent) interest thereon from said date; that execution was issued thereon on March 20th, A. D. 1930, and delivered to the Sheriff of said county to execute, and afterward, on the 21st day of March, A. D. 1930, was returned by said Sheriff, ‘No Property Found’; that said defendant, Elmer J. Wise is insolvent and has no property which can be reached by execution.

“Complainant further represents that there is due to said Elmer J. Wise, a One Per Cent (1 per cent) commission, being seven Hundred Eighty-One Dollars and Thirty-eight Cents ($781.38), fully earned by him from the Town of Middlefork, in Vermilion County, Illinois, to be paid by said Town out of the proceeds derived from the sale of $75,000.00 Hard Road Bonds voted in said Town; that said Elmer J. Wise being Supervisor of said Town of Middlefork, and Treasurer of said fund, which is on deposit in the American Bank and Trust Company, Danville, Illinois, a Corporation; that said sum of Seven Hundred Eighty-One Dollars and Thirty-eight Cents ($781.38) ought in equity to be applied in satisfaction of said judgment, and said defendant, Elmer J. Wise, and the said American Bank and Trust Company, Danville, Illinois, a Corporation, should be required and compelled to discover and set forth all the facts and circumstances in regard to said commission and money in said Bank due said Treasurer on said fund, in the respects aforesaid, and he should be temporarily enjoined from assigning or transferring said amount due him, or the order which has been issued to him for the same, and when received and collected by the Receiver to be appointed for that purpose, it should be applied to the discharge of said judgment; that upon hearing of this cause said Injunction be made perpetual, and the said Elmer J. Wise be required to indorse and deliver said order to said Receiver for the purpose aforesaid, and that complainant may have all other, further ¿nd different relief in the premises as equity may require and to the court may seem proper.

“Forasmuch, Therefore, as your complainant is without remedy except in this Court, and to the end that said defendant may be required to answer this bill, but not under oath, and that upon hearing, disclosure may be had of both defendants, as above set forth; that said temporary injunction be made perpetual ; that said Receiver collect said money due said Elmer J. Wise on said order for said Commission, and said Elmer J. Wise be required to endorse and deliver the same to him, and not to transfer or assign the same. ’ ’

The averments in appellant’s bill of complaint are to the effect that the appellee Elmer J. Wise is a supervisor of the town of Middlefork in Vermilion county and ex officio treasurer of the road and bridge fund of the town; that in his official capacity as treasurer he has earned a one per cent commission amounting to the sum of $781.38, which was due and payable to him by the town of Middlefork as such treasurer from the proceeds of a sale of $75,000 of hard road bonds; and that the appellee as supervisor and treasurer has this fund of $75,000 on deposit in the appellee bank — The American Bank and Trust Company. And the purpose of the creditor’s bill is to compel the appellee Wise and the appellee bank to “discover all the facts and circumstances in regard to said commission and the money in said bank due said treasurer”; also that the appellee Wise be temporarily enjoined from assigning or transferring said amount due him in any order which may have been issued to him for the same; and that a receiver should be appointed by the court and the appellee Wise be required to indorse and deliver the order mentioned to the receiver; and that when the money is collected by the receiver, it be applied to the discharge of appellant’s judgment for the sum of $600.25, which he recovered against the appellee Wise in the circuit court of Vermilion county.

It is evident from the foregoing averments of the facts that the money in question, which is averred to -be due as commissions, is payable to the appellee as treasurer of the road and bridge fund, and not to appellee as an individual, and that it is still a part of the road and bridge fund of which he has possession and which is under his control as treasurer; that is to say, that the order of the court, if carried into effect prayed for by the bill, involves the disposition of a part of a public fund in legal possession and charge of a public official. It is conceded by the appellant that a municipal corporation or a public official cannot be garnisheed at law, under these circumstances, for the reason that it is against public policy to allow such a proceeding on account of the expense and vexation and interruption of public business by permitting the same to be done; but it is also settled law, that a creditor’s bill is considered in the same legal category as a garnishment proceeding- when filed to accomplish the same purpose. Addyston Pipe & Steel Co. v. City of Chicago, 170 Ill. 580.

In this litigation the appellant seeks to accomplish what would be the result and final effect of a garnishment proceeding, namely, to appropriate the money which is claimed is due to the appellee Wise to satisfy the judgment which the appellant recovered against Wise, although the money which is sought to be applied for that purpose is a part of a public fund in the hands of a public official; and averred in the bill to be due and payable to such public official as official compensation for a public service. And the court is asked to dispose of the money as if it were due and payable to the appellee Wise personally. However, the money which is due and payable to him as treasurer would not become his personal money until it was paid to him. Triebel v. Colburn, 64 Ill. 376. Nor would a receiver have the legal right to compel the payment to him of the money under these circumstances as long as it remains a part of. a public fund and is in the hands of a public officer as part of a public fund. Lamb v. Lamb, 256 Ill. App. 226. The bill does not aver that an order for the commission due to the treasurer has been issued and made payable to appellee Wise personally; and there is no presumption of law and none can arise from the averments in the bill, that such an order would be issued; inasmuch as it is payable to him as treasurer, the presumption of law would be that such an order if issued would be made payable to him as treasurer; and in that event he would have to indorse or assign it as treasurer. It is apparent, therefore, that all the matters which would be legally required to be done or restrained from doing by the direction of the court, are matters which the appellee Wise would have to do or refrain from doing as treasurer of the road and bridge fund. It is elementary law that in order to give the court jurisdiction to adjudicate upon the legal right claimed by appellant in part of a public fund in charge and possession of the treasurer of the road and bridge fund to be legally taken from the treasurer and utilized to satisfy appellant’s judgment, the treasurer who has legal charge of and responsibility for the fund must be made a party to the proceeding, and this legal requisite is not supplied by making the appellee Wise a party to the suit as an individual.

We conclude therefore that the bill of complaint was insufficient in law as a basis for granting the relief prayed for by the appellant and that the demurrer was properly sustained. The decree dismissing the bill is therefore affirmed.

Affirmed.


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    Mona Garman, Appellee, v. O. T. Smith and Leon E. Smith, Appellants.
    Gen. No. 8,472.

      Opinion filed April 14, 1931.
    Chas. W. Fleming and P. S. Duffin, for appellants.
    Acton, Acton & Baldwin and Livengood & Liven-good, for appellee; William M. Acton, of counsel.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case a judgment was entered by the circuit court of Vermilion county on a judgment note for the sum of $13,200 against the appellants O. T. Smith and Leon E. Smith, and in favor of the appellee, Mona Carman, who was formerly Mona Smith, wife of the appellant Leon E. Smith. Thereafter on motion of the appellants supported by their affidavits the judgment was opened and leave given to the appellants to plead in defense. The appellants thereupon filed a verified plea of non assumpsit denying* the execution of the judgment note upon which the judgment had been rendered. The appellants contended upon the trial, that their signatures to the note were forgeries, and the question of the genuineness of the signatures of appellants was the main contention of fact in the case. The evidence upon this question was in conflict; and the determination of the matter involved the consideration of the credibility of the witnesses for appellants and appellee who testified in the case. The jury found the issues raised by the appellants’ verified plea in favor of the appellee; and the judgment was thereupon made final.

Various questions are raised by the ■ appellants for reversal of the judgment. It is contended that the verdict is contrary to the weight of the evidence. This question cannot be properly determined without taking into consideration, as an important factor, the credibility of the witnesses; the jury who heard the witnesses testify, and saw them and their demeanor on the stand were in the best position to determine the weight of the evidence. It is evident from the verdict that the jury concluded that the appellee and her witnesses were entitled to greater credence than the appellants and their witnesses; this court would not be warranted in saying that they should not have done so.

Another contention made by the appellants is that the court erred in admitting certain evidence of James Crenshaw, which the appellee elicited by redirect examination, namely, in reference to his conviction, which the appellants had made a matter of verbal proof on cross-examination. Crenshaw was called as a witness for appellee and had testified concerning the matters in controversy, and was examined and cross-examined; but later was recalled for further cross-examination; and the appellants upon the recall of the witness propounded the following question: “Mr. Crenshaw, I will ask you as a matter of fact if you weren’t convicted of the crime of forgery in the District Court of the United States for the Eastern District of Illinois, Court holding at East St. Louis, Illinois, in the year 19211” To this question he answered: “I was convicted but don’t remember the year. It was for forgery of registered liberty bonds. Served time in the Leavenworth penitentiary. My sentence was for five years.” Whereupon on redirect examination counsel for appellee asked certain questions concerning the nature and gravity of the crime of which he had been convicted, and the witness over the objection of appellants was allowed to answer the questions.

It was held in Schwarzschild & Sulzberger Co. v. Pfaelzer, 133 Ill. App. 346, that where the evidence of conviction is made by oral testimony, it is not error to interrogate the witness concerning the character and the nature of the offense. Under the ruling made in that decision no error was committed; but inasmuch as it was a collateral matter and could not have had any natural effect on the issues in the case, the error, if any, would not be reversible.

Error is also assigned on the first instruction given to the jury at the instance of the appellee. The instruction complained of is as follows:

‘‘1. The court instructs the jury that in this suit a judgment was heretofore taken by confession in this court, in favor of the plaintiff and against the defendants, and upon motion of the defendants and under their claim that they did not execute the note introduced in evidence, the judgment was opened up and the defendants permitted to make their defense, and the defendants have filed their pleas herein denying that they executed the note sued on. The defendants have filed no pleas of want of consideration, and the sole issue of fact for the jury to try in this case is whether or not the defendants executed the note introduced in evidence. No other question of any kind is made by the issues for the jury in this case to try. In your verdict,-if you find from the preponderance of the evidence that the defendants did execute and deliver the note introduced in evidence, you will find the issues for the plaintiffs, and if you do not find from the preponderance of the evidence that the defendants executed the note sued on, then by your verdict you would find the issues for the defendants. If you find the issues for the plaintiff you need not find the amount of the plaintiff’s damages, for that is fixed by the terms of the note and the judgment previously entered in the cause. ”

The objection made to the instruction is that it states general propositions of law not disputed, and that the instruction ignored the question of delivery of the note in question which was in issue in the case. There is a general statement in the instruction about which there was no question, namely, that the defendants- had filed no pleas of want of consideration; and this statement had no proper place in the instruction. But the statement could not in any way have confused or misled the jury concerning the real issues in the case, namely, whether or not the signatures of the makers of the judgment note were forgeries. It is apparent on reading the instruction, that it did not ignore the question of delivery of the note in question. The question of delivery is involved in the issue raised by the denial of the execution of the note. Hunt v. Weir, 29 Ill. 83. And in that regard the instruction expressly charged the jury that “if you find from the preponderance of the evidence that the defendants did execute and deliver the note introduced in evidence, you will find the issues for the plaintiff.”

The record discloses that the other error assigned by the appellants that they were unduly restricted in their cross-examination of witnesses is without merit. For the reasons stated the judgment is therefore affirmed.

Judgment affirmed.


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    John S. Vaughan, as Administrator of the Estate of Helen Locklin, Deceased, Appellant, v. Millikin National Bank and Maria Mathews Clark, Appellees.
    Gen. No. 8,479.

      Opinion filed April 14, 1931.
    W. Gr. Cloyd and Carl 8. Reed, for appellant.
    Vail, Allen, Mills & Armstrong, for certain appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

The appellant, John S. Vaughan, as administrator of the estate of Helen Locklin, who died intestate in January, 1928, filed a petition in the county court of Piatt county, representing that at the time of the death of Helen Locklin, she had on deposit about $5,000 in a savings account in the Millikin National Bank; and that the bank refused to turn .'over the deposit to the appellant or administrator; that the deposit was claimed by Maria Mathews Clark, a niece of the deceased. The prayer of the petition is that the court fix the time for hearing on the matters alleged in the petition; and make an order in the premises as shall be just, fitting and proper. Upon the hearing of the petition, the county court found that the deposit referred to was a part of the assets of the estate of Helen Locklin, deceased; and that the appellant was entitled to have the same paid over to him as administrator, to be administered upon and distributed as a part of the estate of Helen Locklin, deceased. An appeal was prayed by Maria Mathews Clark, and allowed, to the circuit court. Thereupon a hearing was had in the circuit court; and the court found that the estate of Helen Locklin, deceased, had no claim upon the deposit in the bank mentioned; and rendered judgment in bar of the appellant’s claim as administrator; and dismissed the petition. This appeal is prosecuted from the judgment.

There is no dispute about the facts. And it clearly appears that the deceased Helen Locklin, on Sept. 5, 1919, opened a deposit account in the appellee bank in the name of herself and her niece Maria Mathews Clark, and that the bank issued a pass book to her and Maria Mathews Clark jointly. The deceased at that time had $5,000" to her credit in her personal account in the bank which was transferred to the joint account; and after the joint account had been opened, the deceased made several deposits in the joint account up to the time of her death, and the interest accruing on the funds in the account was regularly credited by the bank. The pass book issued by the bank had stamped upon it The Millikin National Bank (Founded A. D. 1860) Decatur, Illinois, Savings Department, office hours, 9 a. m. to 3 p. m. (Joint owners payable to either or the survivor) Miss Helen Locklin or Mrs. Maria Mathews Clark. (Take care of this book — it must be presented when money is deposited or withdrawn. If lost or stolen, notify the bank at once.) The book shows the original deposit in the joint account to be $5,237.57, and the deposits in each year thereafter. At the time the account was opened by the deceased, the bank issued what was called a joint tenancy card; and on this card were stamped the words “Joint owners payable to either or the survivor”; and beneath ivas the following printed agreement on the card: “We hereby agree that any and all deposits, and any interest or dividend thereon in the above joint account may be paid to any or either of us; and the receipt of indorsement of any or either of us shall be a full and complete discharge, whether the other or others be living or not.” The deceased signed this card, and later produced a signature which she said was the signature of Mrs. Clark; and which she said she had clipped from a letter. This signature of the appellee, Mrs. Clark, was pasted on the card beneath the signature of the deceased. The deceased kept the pass book and the appellant as administrator found the same among her effects after her death. After the joint account had been opened, the deceased not only made further deposits in the account from time to time until her death, but during this period also withdrew money from the account from time to time; and at the time of her death there was about the sum of $5,000 on deposit. The evidence does not show whether or not the appellee Clark had any knowledge of the opening of this joint account or the transactions with reference to it after the account had been opened.

The appellant contends, for reversal of the judgment, that the right to withdraw the funds in the joint account mentioned which the appellee Clark had, did not survive to her at the death of Miss Locklin; that under the Act of the General Assembly in force and effect after June 30, 1919, Cahill’s St. ch. 76, TT1 et seq., to revise the law in relation to joint rights and obligations, the survival of the right was dependent upon her having signed the mutual agreement on the so-called joint tenancy card, hereinbefore set forth; and that she did not sign the same; and this is the vital question presented for review on this appeal.

The determination of that question involves a construction of section 2 of the legislative act referred to, Cahill’s St. ch. 76, If 2, which has reference to the right of survivorship in personal property as joint tenants or owners. It is evident that it was the intention of the legislature by the enactment of section 2 to abolish the right incident to the right of survivorship as between joint tenants and owners of personal property, “except as to executors and trustees, and except also where by will or other instrument in writing expressing an intention to create a joint tenancy in personal property ivith the right of survivorship.” But there is a special proviso in the section, in reference to bank deposits, which is the subject matter of this suit, namely: “That Avhen a deposit in any bank or trust company transacting business in this State has been made or shall hereafter be made in the names of two or more persons payable to them when the account is opened or thereafter, such deposit or any part thereof or any interest or dividend thereon, may be paid to any one of said persons whether the other or others be living or not”; then there is another clause added to the proviso: “And AAdien an agreement permitting such payment is signed by all said persons at the time the account is opened or thereafter the receipt or acquittance of the person so paid shall be valid and sufficient discharge from all parties to the bank for any payments so made. ’ ’ It will be noted that in the body of the proviso the right of survivorship is definitely and unconditionally preserved to the joint depositors; and contains no requirement that any instrument in writing shall be signed or executed by the joint depositors for that purpose ; and the clause attached as a part of the proviso refers to what shall be deemed a sufficient discharge of the bank for the payments made by it. But we are of the opinion that under the proviso referred to, concerning joint deposits in banks, no instrument in writing expressing an intention to create joint tenancy is necessary to create such joint ownership and right of ownership in the deposits made on joint account, as stated in the proviso. But the fact that the deposit has been made by arrangement and agreement with the bank in the names of two or more persons, so as to be payable to them, or either of them in accordance with the proviso, the joint ownership of such deposit or any part thereof or any interest or dividend thereon becomes vested in the persons in whose names the deposits are made; the added clause does not in any way qualify or restrict the right of payment or the right to withdraw the deposits in the persons named in the joint account after the death of one of the joint depositors ; but the writing referred to when signed by all the persons named in the account merely provides an additional safeguard to the bank by providing that when such agreement is signed by all the persons named in the joint account, the receipt or acquittance of any of the persons named in the account who are paid shall be a valid and sufficient discharge from all parties to the bank for any payments so made; that is to say, the receipt or acquittance of one shall be considered in effect the receipt of all. In this case no payment was made by the bank after the death of Helen Locklin to the surviving joint depositor and no receipt was taken by the bank; and the clause referred to never became operative.

For the reasons stated we are of the opinion that the finding of the court that the appellee Clark is entitled to the balance in the joint deposit account in the appellee bank; and entitled to withdraw the same; and that the same is not a part of the assets of the estate of the deceased, was in accordance with the law; and the judgment is therefore affirmed.

Judgment affirmed.