text:
    A. Pusatere, Appellant, v. H. D. Darnell, Appellee.
    Gen. No. 9,267.

      Opinion filed August 30, 1938.
    Charles E. and Frederick H. Lauder, both of Monmouth, for appellant.
    L. H. Hanna, of Monmouth, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

On August 31, 1929, the parties hereto entered into a written lease by the provisions of which appellant leased certain business property in the city of Monmouth to appellee for a period of five years from the above date, at a stipulated monthly rental of $175 per month. Prior to that date, appellee was occupying the premises under án oral lease from appellant. The written lease authorized a confession of judgment upon instalments of rent as often as defaults in the payment thereof should occur. Appellee continued to occupy the premises for about three and one-half years following the execution of the written lease. On June 3,1933, by virtue of the warrant of attorney contained in the lease, a judgment by confession was taken by appellant against appellee in the circuit court of Warren county, for the rent then claimed due and unpaid. This judgment was opened up and the appellee was permitted to plead. A trial by jury resulted in a verdict in favor of appellee. The appellant prosecuted an appeal to this court from the judgment upon the verdict (Pusatere v. Darnell, 279 Ill. App. 647 [Abst.]).

Appellee vacated the premises on June 2,1933. The above judgment was taken against him by appellant for claimed arrearages prior to the month of June, 1933, and for the rental due for the said month of June, 1933, the lease providing that the monthly rental was payable in advance. In that case it was claimed by the appellee that he had paid various sums of rental for the months in question, prior to his vacating the premises, which sums of rental he claims the appellant agreed in each instance to accept in lieu of the stipulated rental provided for in the lease. The jury accepted appellee’s contention in this respect and returned its verdict in his favor. This court in that case permitted the contention of appellee that the reduced monthly payments had been accepted by appellant in lieu of the rental agreed upon, to stand, on the theory that each of them constituted an executed agreement (Levy v. Greenberg, 261 Ill. App. 541); but that when appellee abandoned the premises on June 2, 1933, without the payment of the rent for that month, that he, by the terms of the lease, was obligated on the date of the judgment for the rental for that month, as provided for in the lease, the lease not having then expired. The judgment of the circuit court was reversed and judgment entered in this court in favor of appellant and against appellee for the amount of $175 as rental for the month of June, 1933, as provided for under the terms of the lease, together with appellant’s attorney fees as provided by said lease.

On July 5, 1935, appellant took the present judgment by confession against appellee under the lease, for the unpaid rental from July 1, 1933, to August 31, 1934, the expiration date of the lease, together with his attorney fees as provided for therein. Appellee again filed motion to open up the judgment and for leave to plead, which motion was granted. The cause was heard by the court and judgment entered vacating the judgment by confession previously taken on July 5, 1935, and with judgment for defendant appellee. The appellant prosecutes this appeal from the judgment of the trial court, and the case is now before this court for the second time, but for a different rental period.

In the previous case before this court it was held, “that where a lease, under seal, fixes a certain amount of rent to be paid each month, a parol agreement changing the amount of rent to be paid for the unexpired term and leaving the lease in other respects unchanged and in force, is not binding upon the lessor, and he will, notwithstanding such parol agreement, be entitled to recover the amount of rent called for by the lease.” Citing Chapman v. McGrew, 20 Ill. 101; Loach v. Farnum, 90 Ill. 368; Barnett v. Barnes, 73 Ill. 216; Davidson v. Dingeldine, 295 Ill. 367; Goldsborough v. Gable, 140 Ill. 269; Snow v. Griesheimer, 220 Ill. 106. It was there held that such agreements were executory, without any consideration, a mere nudum pactum, and not binding upon the lessor. It was also there held that, ‘ ‘ the agreement for a reduction was still executory as to subsequent rent, and the payments made would be but invalid ratifications and repetitions, so far as the contract remained executory, of an invalid promise and would stand on the same footing as the promise itself. ’ ’ The conclusion reached by this court in the former case was, that the claim by appellee that the appellant agreed to receive a less amount each month for rent than the amount specified in the lease, was without consideration to support it and but a mere nudum pactum and not susceptible of being enforced as to any subsequent month’s rent, and that nothing had occurred between the parties to work an equitable estoppel against appellant.

Appellee in this present suit sought to make other defenses to the rental contract than those urged in the first case. These defenses, if they existed, existed prior to the time of the bringing of the first suit, because they are all based upon matters claimed to have occurred prior to the time appellee vacated the premises. This action is based upon the same rental contract as the first action and is between the same parties, and the subject matter and obligation alleged against appellee is of the same origin as that in the first suit. When a second case is between the same parties as the first, and based upon the same cause of action, the judgment in the former case is conclusive in the latter, not only as to the questions which were decided in the first case, but also as to all other matters which were open to consideration and which the parties might have litigated and had determined. South Park Com’rs v. Montgomery Ward & Co., 248 Ill. 299, 312; Commercial Loan & Trust Co. v. Mallers, 242 Ill. 50, 53; Wood v. Maxwell, 238 Ill. App. 597, 599. The new matters of defense sought to be urged by appellee were fully known to him prior to the first suit. The fact that he did not urge them at the former trial avails him nothing at this time, as he might have done so had he seen proper. “The questions that are res judicata are not confined to those raised and insisted on at the former adjudication, but they embrace also those which were involved in the issue and might have been properly insisted on.” Gross v. People, 193 Ill. 260, 263.

This court speaking through Mr. Justice Dove, held the -lease binding in the former case, and judgment was rendered in this court for the rental then due in accordance with the terms of the lease. The former suit was brought upon the same lease upon which the present action is brought, and was between the same parties. The fact that this suit is for different and subsequent instalments of rent does not deprive appellant from urging res judicata against appellee with reference to the validity of such lease, and all questions concerning the validity thereof which might have been raised and determined in the former suit. Louisville N. A. & C. Ry. Co. v. Carson, 169 Ill. 247.

Appellee filed his motion in this case to dismiss the appeal, based upon two principal grounds, the first being that the abstract did not show filing, and date of filing, of notice of appeal, nor the filing of praecipe for record, or service thereof on appellee. Appellants amended p. "20 of the abstract, supplied by leave of this court, sets forth the above matters and thus obviates such objections. Appellee next urges by his motion, that the report of proceedings should be stricken because the same were in the custody of appellant’s attorneys from October 27, 1937, to November 10th following, before the same were filed in the office of the clerk of the trial court. It appears that appellant perfected his appeal in the manner prescribed by statute. The record was large and an extension of time was secured for the filing thereof. The record was filed well within the time required. It appears here that the original copy of the record was used for the purpose of appeal, and that no copy thereof was prepared. A short record was filed in the office of the clerk of this court on September 14, 1937, and the record proper was filed on December 10, 1937. The case was heard in this court on June 14, 1938, one of the days of the May term, 1938. Therefore, appellee had ample opportunity to withdraw the record from this court if desired. However, his brief appears to be full and complete and no objection is made that he did not have sufficient opportunity to resort to the record. When an appellant perfects an appeal to this court in the manner prescribed by statute, this court has no power to arbitrarily dismiss such appeal. The motion of appellee is therefore denied.

The judgment herein is reversed and this cause remanded with directions that the circuit court of Warren county enter a judgment that the judgment by confession as heretofore taken on July 5, 1935, shall stand in full force and effect as of the date entered.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Wolfe

license: Public Domain

text:
    Sayde E. Fitzpatrick, Administratrix of Estate of Francis Kenneth Fitzpatrick, Deceased, Appellant, v. Norman B. Pitcairn and Frank C. Nicodemus, Jr., Receivers of Wabash Railway Company, Appellees. Sayde E. Fitzpatrick, Administratrix of Estate of John Q. Fitzpatrick, Deceased, Appellant, v. Norman B. Pitcairn and Frank C. Nicodemus, Jr., Receivers of Wabash Railway Company, Appellees. Sayde E. Fitzpatrick, Administratrix of Estate of John J. Fitzpatrick, Deceased, Appellant, v. Norman B. Pitcairn and Frank C. Nicodemus, Jr., Receivers of Wabash Railway Company, Appellees.
    Gen. No. 9,312.
    Gen. No. 9,313.
    Gen. No. 9,314.

      Opinion filed August 30, 1938.
    Cassidy & Knoblock, of Peoria, for appellant; John E. Cassidy and John E. Carlson, of counsel.
    Miller, Elliott & Westervelt, of Peoria, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

This is an appeal from an order of the Peoria circuit court dismissing the three cases for wrongful death against the receivers of the Wabash Railway Company. The dismissal of the suits by the court was ordered on the pleadings and before trial. There were three separate suits in the circuit court but they have been consolidated in this court. The Gren. Nos. of the cases are respectively, 9,312, 9,313, and 9,314. The declaration is practically the same in all three cases. The dates on which the pleadings were filed are taken from Gren. No. 9,312.

On October 6, 1936, Sayde E. Fitzpatrick as administratrix filed two suits in the Peoria circuit court on account of the wrongful death of her two minor sons, John Q. Fitzpatrick and Francis Kenneth Fitzpatrick. There suits were filed naming the defendant as “Wabash Railway Company,” and charged that the wrongful deaths occurred on January 18, 1936.

On December 10, 1936, the same plaintiff, Sayde E. Fitzpatrick, as administratrix, filed a suit in said court against the Wabash Railway Company for damages alleged on account of the wrongful death of her husband, John J. Fitzpatrick, on January 18, 1936. The complaints in all three suits were very similar, averring that the accident causing the death of plaintiff’s husband and two minor children occurred at the Wabash Railway crossing at the village of Campus, Livingston county; that at the time of the accident the husband of the administratrix, John J. Fitzpatrick, and her two minor sons, John Q. Fitzpatrick and Francis Kenneth Fitzpatrick were passengers in the same automobile.

On November 2,1936, the Wabash Railway Company and A. F. McDonald, one of the defendants who was the engineer on defendant’s train at the time and place aforesaid, filed their separate answers. They denied each and every allegation in plaintiff’s complaint by simply stating “Defendant denies Paragraph One, Count One. Defendant denies Paragraph Two, Count One, ’ ’ and so on to each and every paragraph in plaintiff’s bill of complaint. On November 10, 1936, the plaintiff entered a motion to strike the answer because the same was ambiguous, indefinite, and uncertain. On February 11, 1937, the motion to dismiss the "defendant’s answers was sustained and leave granted to file amended answers within 10 days. The amended answers were filed February 20, 1937. Each denies the specific allegation of the complaint that the Wabash Railway Company at the time of the accident in question was operating a train by defendant’s agent and servant A. F. McDonald, while on the defendant’s tracks, etc., which caused the accident complained of.

After this answer was filed the plaintiff entered a motion to add as parties defendant, Norman B. Pitcairn and Frank C. Nicodemus, Jr., receivers of the Wabash Railway Company, a corporation. On March 22, 1937, the court granted leave to plaintiff to make this amendment. On April 18, 1837, the receivers of the Eailway Company entered a motion to dismiss the suit as against them for want of jurisdiction, because they had not been made parties to the action within one year’s time after the accident which caused the death of plaintiff’s intestate. The court sustained this motion and dismissed the suit. It is from this order of dismissal that the several appeals have been prosecuted.

The only question involved in these suits is whether a suit can be maintained against the receivers of said Railway Company after the suits had been started against the Wabash Eailway Company, a corporation, and proper service had upon that company, by substituting them as parties defendants, after the statutory period has expired for bringing such suits. Our attention has not been called to any Supreme or Appellate Court decision of Illinois or any other State, in which this identical question has been decided. There are numerous cases both in our own courts and other States, and in the U. S. Supreme Court, in which similar questions has been involved. In the case of Proctor v. Wells Bros. Co., 262 Ill. 77, Proctor, who as a workman, for whom he supposed was Wells Bros. Company, a corporation, was injured and he brought suit against the company under title of “Wells Bros. Company, a corporation.” A summons was issued upon Wells Brothers Company, a corporation. To this the defendant filed its answer and denied that Proctor was employed by them. After the statutory period for bringing such action had expired, it developed that Wells Brothers Company, a corporation, was not the employer of Proctor, but Wells Brothers Company of New York, which was an entirely different corporation from the original defendant, was such employer. Wells Brothers Company of New York was made party defendant to the suit and judgment was rendered against this corporation for the damage sustained by Proctor. The officers of the two corporations were the same men but served in different capacities. Addison E. Wells was president of Wells Brothers Company, and vice-president of Wells Brothers Company of New York. F. A. Wells was president of Wells Brothers Company of New York and vice-president of Wells Brothers Company. Each had an office in the same building in Chicago. The court in this case held that Proctor had elected to sue Wells Brothers Company and had insisted that he was employed by them, and that it was after the statutory period for bringing such action against the Wells Brothers Company of New York had expired that he had tried to hold them liable and he could not maintain his suit against the latter company at the time he brought the suit because the issuance of the summons was the commencement of the suit against Wells Brothers Company of New York and was a new cause of action.

There are many cases that arose during the time that the Federal Government was operating the railroads under the Federal Control Act. Frequently suits were started against the railroad company as a corporation and after the statutory period for bringing suits had expired an attempt was made to have the agent of the government made a party to the suit. Perhaps the leading case on this subject is the case of Davis v. Chrisp, 159 Ark. 335, 252 S. W. 606. O. H. Chrisp, the plaintiff, filed suit against the Missouri Pacific Railway Company, alleging that he was a brakeman on said railroad and through the carelessness of the engineer of the railroad company he received injuries which resulted in the loss of one of his legs. The railroad company demurred to the declaration on the ground that it was shown on the face of the complaint that at the time of the injury, the railroad company, the property of the company, and its operation was under the control of the government under the Federal Control Act. The court sustained the demurrer to the declaration and the plaintiff was granted leave to make James C. Davis, as agent of the government, a party defendant. Service was had upon the new defendant and plaintiff then filed an amended declaration alleging the facts as were set forth in the original complaint in all respects with the exception of the railroad company. The plaintiff recovered a large sum as damages.

The court in defining the issues, use this language, “The first and principal contention of counsel for the defendant as grounds for reversal is that the trial court had no authority under our statutes to allow an amendment to the complaint, substituting as defendant a new party against whom there was alleged to be a cause of action, in the place of the original defendant against whom there was no cause of action; that this was tantamount to the commencement of a new action after the expiration of the time allowed by the Federal Statutes for bringing such action. It is the contention of counsel for plaintiff that the substitution of the new party was permissible as an amendment to the complaint stating the same cause of action as in the original complaint, and that the substitution related back to the commencement of the action against the railroad company.” From this statement it can be seen the issues involved in the case are the same as the one we are now considering.

After reviewing many cases the court concluded as follows: ‘6 Our conclusion is, therefore, that defendant is correct in the contention that the amendment substituting the Federal Agent for the railroad company was not authorized by our statute and was tantamount to the commencement of a new action, which could not be done after the period prescribed by the federal statutes within which such actions may be instituted. The substitution was not a mere change of representative, as in the case of change from the Director General to the Federal Agent. The effect of the substitution was to change the action from one against the railroad corporation to one (against the United States government, and, as before stated, it constituted a complete change of parties. The Federal Agent was not bound to take cognizance of an action against the railroad corporation, even though the service was on the same local station agent, and even though the complaint stated a cause of action for personal injuries sustained during governmental control.”

In the case of Davis v. Federal Industrial Commission, 315 Ill. 341, Schaefer filed a petition against the Southern Railway Company for compensation for injuries he received while employed by said railroad company. He was paid compensation from time to time. At the time of his injuries the railroad company was under the control of the director general of railroads. The injury complained of occurred on May 27, 1919. On September 23,1921, the director general refused to, pay anything further on Schaefer’s claim. On the original claim pending before the Industrial Commission against the Southern Railway Company, on March 8, 1922, a motion was made to substitute James C. Davis, director general of railroads, as agent under the Transportation Act, in control of the Southern Railway. Objection was made to such order and motion filed to dismiss the cause on the ground that the petition filed in October, 1919, was against the Southern Railway Company and at that time the railroad was operated by the director general of railroads. The motion was overruled and judgment was entered in favor of the petitioner. The case was taken to the Supreme Court. Among the cases reviewed by the Supreme Court and cited with approval, is Davis v. Chrisp, supra. The court held that the starting of the suit against the. Southern Railway Company did not constitute a cause of action against the government and therefore no right of substitution of James C. Davis, director of railroads, as party defendant existed, and since the petitioner had not filed a claim against the director general within the time the statute provided for bringing such proceedings, the Industrial Commission was without jurisdiction to enter the order and the circuit court erred in confirming it and the judgment was reversed.

In the case of Davis v. Cohen & Co., 268 U. S. 638; Cohen & Co., in January, 1920, broug’ht a suit against the New York, New Haven, and Hartford Railway Company for damages to a carload of scrap iron shipped over the said railroad in 1918, when said road was under the Federal Control Act. The declaration named the railroad company defendant and the service was had on the railroad company. The railroad company appeared and filed an answer denying the allegations of the declaration. No further proceedings were had until September, 1922, when the railroad company’s name was stricken out and James C. Davis, agent, director general of the railroad, was made party defendant. Davis appeared specially and entered a motion to dismiss, on the ground that the court was without jurisdiction to entertain the action because the proceeding was not started against him within the time prescribed by statute. The court overruled the motion and entered judgment against him for damages. In the discussion by the court we find this language: “Our conclusions may be briefly stated. The railroad company was not liable for the cause of action that had arisen during the Federal control; the sole liability being that of the Director General as a representative of the government. The original suit against the railway company was not a suit against the Director General, and the service of the original writ upon the railway company did not bring him before the court. . . . It is immaterial that, as admitted at bar, the service of the writ against the railroad company was made upon a clerk upon whom process against the Director General might have been served if the suit had been brought against him. ‘The Federal agent was not bound to take cognizance of an action against the railroad corporation, even though the service was on the same local station agent, and even though the complaint stated a cause of action for personal injuries sustained during government control. ’ Davis v. Chrisp, 159 Ark. 335, 343, 252 S. W. 606.

“. . . The amendment of the writ and declaration in the suit against the railroad company, in October, 1922, by substituting the designated agent as the defendant, was, in effect, the commencement of a new and independent proceeding to enforce this liability. Being commenced more than two years after the passage of the Transportation Act, it was repugnant to the provision of §206 (a), requiring such an action to be instituted not later than two years after the passage of the act.” The rulings of the Supreme Court in the above case seems applicable to the facts in the present case.

It is insisted by the appellant that since service was had upon an agent of the receivers for the Wabash Railway Company, it was legal service upon the receivers and that such service on the receivers would relate back to the date of the service on said agent, although the Wabash Railway Company was named as defendant in the pleadings and summons. In the case of Grewenig v. American Baking Co., 293 Ill. App. 604, we held that such service is not valid. The U. S. Supreme Court held in the case of Davis v. Cohen & Co., supra, that such service is not valid. When Mrs. Fitzpatrick started her suit, she alleged and maintained that the Wabash Railway Company was the owner and operator of the train in question which killed her husband and children. She did not change her position and claim that the receivers were the ones who operated and controlled the train in question, until more than the statutory period of one year for bringing such suits after the death of plaintiff’s intestates had expired.

After this opinion was written the appellant asked for and was granted leave to file additional authorities. They cite the case of Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill. 222, as sustaining their contention. We have examined this case and we find that the same question is not involved as in the present case. In the Metropolitan case the Dairy Co. and Kunz were made parties defendants and properly served in apt time. The plaintiff charged each of the defendants with striking the plaintiff’s intestate, etc. The evidence failed to show the Dairy Company’s wagon struck the deceased. The plaintiff then shifted its position in regard to who actually caused the damage and injuries. The question whether a new party not served with summons could be made a defendant to the suit, after the statutory period had expired, was not involved in this suit.

It is our conclusion that the court properly sustained the motion to dismiss each of the three suits as the court did not have jurisdiction of the defendants in any of the suits. The judgments in each of the suits is affirmed.

Judgment affirmed.

Dove, P. J., dissents.


author: Mr. Presiding Justice Dove

text:
    First Trust and Savings Bank of Kankakee et al., Appellants, v. Town of Ganeer, Kankakee County, Illinois, et al., Appellees.
    Gen. No. 9,285.
    Opinion filed August 16, 1938.
    A. L. and C. M. Granger and Irwin C. Taylor, all of Kankakee, for appellants.

      Harry S. Streeter and Armen R. Blanks, both of Kankakee, for appellees.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

The complaint herein was filed in the circuit court of Kankakee county on January 11,1936 and alleged that from April 13,1932 to May 13,1933, Edward P. Cleary was the duly appointed, qualified, and acting* supervisor of the town of Graneer in Kankakee county and that during that period he, as such supervisor, contracted certain indebtedness in behalf of the town in a series of transactions, and as evidence of such indebtedness issued a series of so-called supervisor’s orders, all of which were in substantially the following form:

“Supervisor’s Order Graneer Township

No............ Date............ 193..

To ..................................

Please furnish................with..............

amount not to exceed....................Dollars in

trade. Charge same to Graneer Township.

$............

......................Supervisor.

Order covering amount of bill must be turned in for settlement. (Bears interest at 6% per annum until paid.) ”

The complaint then alleged that the plaintiffs were the bona fide owners of claims evidenced by orders in form similar to the foregoing, which were issued and signed by the said Cleary as such supervisor; that they acquired their title to said orders at various times prior to May 13, 1933 by purchase from the several persons to whom such orders were issued; that the plaintiff, First Trust & Savings Bank, hold the following orders, viz: one dated June 9, 1932 issued to J. H. Templeton for $150 for services as assessor, one dated June 28, 1932 issued to Cleary’s market in the amount of $50.60 for groceries and meats, one dated July 8, 1932 issued to Cleary’s store for $100 for groceries for Jack Prairie, one dated July 8, 1932 issued to Cleary’s market for $120 for groceries and meats for Mrs. Anderson, one dated September 7,1932 issued to Cleary’s market for $56 for groceries and meats for Theo. Comus, and one dated September 15, 1932 issued to Cleary’s market for $76 for groceries for pauper. The complaint then alleged that the plaintiff, Kankakee Citizens System Company held nine similar orders describing each substantially as above and that the plaintiff Walter S. Houdlett held an order dated July 21, 1932 issued to Cleary’s store in the amount of $75 for groceries and meats for paupers. The complaint then alleges that the orders have not been paid nor the claims underlying them and that the defendant is therefore indebted to plaintiffs as assignees for services, labor, material, goods and merchandize sold and delivered and for interest in the amount of $3,000 and demanded judgment against the defendant for that sum.

The defendant, Town of Ganeer, filed its verified answer admitting that E. P. Cleary was supervisor of the town of Ganeer from April 13,1932 to May 13,1933 and was charged with the duties of such office but denied that Cleary lawfully and properly discharged his duties as such supervisor. The answer admits that Cleary contracted certain indebtedness in a series of transactions but denies that such indebtedness was contracted by him in the performance of lawful and proper duties as supervisor or that such indebtedness so contracted by him was or is the actual indebtedness of the town. The answer admits that Cleary issued and signed the orders in the form set out in the complaint but denies that the orders are any evidence of indebtedness of the town and denies that plaintiffs are the actual bona fide holders of said orders, denies that they are negotiable, denies that plaintiffs acquired said orders prior to May 13, 1933 by purchase from the parties to whom they were issued and denies that the defendant is indebted to the plaintiffs as assignees or otherwise for services, labor, material, goods and merchandise or for interest. The answer further denies that the orders were issued for the purposes set forth in the orders except it was admitted that those issued to the assessor and to the town clerk, and to the Momence Press Reporter for printing ballots and to Jesse P. Wehr for repairing the town hall were issued for those purposes.

After the issues had been made up, the cause was submitted to the court for determination, resulting in a judgment finding the issues in part for the plaintiff Kankakee Citizens System Company and rendering judgment in its favor for $224.90, being the aggregate of the sums represented by order No. 52, for $64.90 dated July 14, 1932 issued to the Momence Press Reporter for printing ballots and by order No. 110 dated Dec. 23, 1932 for $160 issued to Jesse P. Ware for repairing the town hall. The court found all other issues in favor of the defendant and rendered judgment in its favor in bar of the action and for costs. From this judgment the plaintiffs have appealed.

It was stipulated that the orders set forth and described in the complaint and which were produced upon the hearing were the property of appellants and that they were the holders thereof and of any claims against defendant, which said orders evidenced. The evidence discloses that Edward P. Cleary was supervisor of the town of Ganeer from April 13, 1932 to May 13, 1933, that he issued the several orders described in the complaint and made a notation upon each that it was not paid for want of funds. The mother of Edward P. Cleary, Elizabeth Cleary and his sister-in-law Nellie Cleary were proprietors of a retail grocery and meat store spoken of in the record. as Cleary’s store or Cleary’s market. Edward P. Cleary testified that he ran the store as manager and carried on the business, lived in the household with his mother and niece and the provisions for the home came from the store but he received no salary for his services and had no financial interest therein. Cleary as such manager of said store extended to various paupers a limited amount of credit, and when that credit was exhausted he, as supervisor, issued and delivered to himself as manager of the Cleary store eleven of the orders described in the complaint. The Cleary store being indebted to various concerns for supplies, meats or goods turned some of the orders described in the complaint "and which Cleary had issued to the store over to such concerns in satisfaction of or to be applied upon the indebtedness of the store to such concerns and these orders were thereafter assigned to the plaintiffs. The other orders described in the complaint were sold by Cleary to the plaintiffs or to their assignors.

Cleary testified, over objection, that at the time he took office in 1932 there was no money in the pauper account. On the first Tuesday of April, 1931, the record discloses that appellee levied for town purposes the sum of $4,750, of which amount $3,850 was for the support of the poor of the town and the evidence is that from April 13, 1932 to and including April 26, 1933, Cleary as supervisor received $4,644.37 for all purposes from the county collector of taxes. Each of the eleven orders issued to Cleary’s store or market bear the indorsement of that store by E. P. Cleary, manager, and all bear an indorsement over his signature as supervisor or treasurer to the effect that the orders were not paid for want of funds. Of the other three orders involved in this appeal, one was issued to J. H. Templeton on June 2, 1932 for $150 and states that it was issued to him for services as assessor, another is dated September 17, 1932 issued to E. P. Cleary for salary as supervisor and the other is for $150, dated October 1,1932 and issued to Andrew Kinney for salary as town clerk. As to this order, Cleary testified that Kinney was town clerk and over counsel’s objection stated that so far as he (Cleary) knew, he, Kinney, received no salary other than this order. As to the order to himself, Cleary testified: “I did have fees coming- to me and issued orders. I made payment on account of my fees from time to time. I wouldn’t say whether this particular order was issued in payment of unearned fees or not. I mig*ht have issued orders for supervisor’s commissions before they were earned. I didn’t always figure it up. I couldn’t say whether or not I issued supervisor’s orders for commissions in excess of the amount coming to me over the period. I couldn’t say. I might have. I don’t recall.” As to the other order which was issued to J. H. Temple-ton for services as assessor, Mr. Templeton testified that he was the assessor of appellee in 1932, that he went to Ed. P. Cleary, the supervisor, to be paid for his services as such assessor, that his salary as assessor was more than $150, that Cleary told him he didn’t have any money but would make out two orders, one_ for $150 and one for $200, that he did so and Temple-ton indorsed them and gave them back to Cleary, who said he would sell or dispose of them and bring Temple-ton the amount due him. That Cleary did not do so but eventually Cleary paid Templeton’s taxes and other items for him and gave him another order for $100. Templeton stated that he was unable to cash this $100 order and that he took it back to Cleary and Cleary finally paid it. Templeton further testified that he received all his money and the town owed him nothing and Cleary’s testimony was that he thought he paid Templeton out of township funds.

F. C. Clark, who succeeded Cleary as supervisor, testified that he received no books of any kind from his predecessor, that he made an effort to find the records of the town of Caneer but was unable to locate anything except some canceled checks, vouchers and a report of Cleary, the contents of which report are not abstracted. Several witnesses testified, among them being Jesse Prairie and Theodore Comus, to the effect that they were receiving food, clothing and groceries from appellee while Cleary was supervisor to whom they applied for help, that Cleary allowed them to purchase at the store four or five dollars worth of supplies each week and that when they made a purchase they received, at times, a duplicate purchase slip and at two weeks or a month interval Cleary would have them sign some kind of a slip which the witness supposed stated that he had received so many dollars worth of groceries.

From the foregoing evidence counsel for appellants insist that the only conclusion that can be arrived at is that appellee is lawfully indebted to appellants for merchandise furnished by Cleary’s store to the paupers of the town as evidenced by the several orders described in the complaint and also liable to appellants for the salary of its assessor, town clerk and supervisor to the amount indicated by the three orders hereinbefore referred to and in support of their contention cite and rely entirely upon Town of Kankakee v. McGrew, 178 Ill. 74. It is insisted by counsel for appellee that the facts in the instant case are clearly distinguishable from the facts in the McGrew case, that here the evidence entirely fails to establish any indebtedness against the town and that the judgment of the trial court is the only judgment that under the law and the facts could have been rendered.

In Town of Kankakee v. McGrew, 178 Ill. 74, the declaration consisted of the common counts and was an action brought against the town of Kankakee to recover $763.70, which represented various amounts due divers persons who had accounts against the town, which had been presented to and audited by the board of town auditors. Some of the demands included in the accounts were for coal and other supplies furnished to poor and indigent persons of the town. The board found all the accounts to be correct and an order was ordered to be drawn and was drawn upon the treasurer in favor of the plaintiff. The opinion stated that the warrant was offered and received in evidence but that the plaintiff did not rely upon it because it was void inasmuch as there was then no money in the treasury and no tax in the course of collection. In affirming a judgment for the plaintiff for the full amount of the orders, the court stated that it was the express statutory duty of the supervisor, as overseer of the poor, to relieve the wants of those who fall within the legal denomination of paupers and held that a town cannot refuse to discharge that duty upon the ground that it has no money in its treasury and no tax in the course of collection, that if there are no funds available for that purpose, the overseer must, of necessity, have the power to pledg’e the credit of the town in that behalf and may procure supplies for such persons from merchants, grocers and tradesmen, who, in the absence of fraud, may deliver such supplies upon the order of the overseer and hold the town liable therefor without being required to show that such person so receiving support was in fact actually entitled thereto.

In the instant case the record discloses that appellant, First Trust and Savings Bank, presented its orders to the board of town auditors and that board refused to allow them. The other appellants never presented their orders to the board for audit. In the Me- Grew case the town board found all the accounts to be correct and an order was drawn upon the treasurer for the aggregate amount of the accounts. While the evidence in the instant case discloses that groceries and supplies were furnished to some of the poor of the town by the Cleary store and that the Cleary store did so at the verbal request of the supervisor, we are clearly of the opinion that' from all the facts shown by this record, appellants are precluded from a recovery. Cleary kept no record of any kind or character. He issued orders to the store of which he was manager and from which he derived his livelihood. The orders were issued after the groceries and supplies were furnished. There is no proof that paupers received the groceries or merchandise called for by the several orders. It was not sufficient for appellants to show that the poor generally received groceries of the value of the order but even this is not shown by the record here. For instance, order No. 113 is dated December 30, 1932 and is directed to Cleary’s store and requests that store to please furnish the paupers of Ganeer township with meats and groceries in an amount not to exceed $280.28 and directs the Cleary store to charge that amount to Ganeer township. This order left it to Cleary’s store to determine who the paupers were to whom they might furnish groceries but the McGrew case, supra, holds that the supervisor must determine who the paupers were that required and were entitled to assistance.

Sections 119 and 120 of chapter 139 of the Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 133.122, 133.123] provides among other things that the board of town auditors shall meet semi-annually and examine and audit the accounts of the supervisor and overseer of the poor (where the town sustains its own poor) for all moneys received and distributed by him, and shall also examine and audit all charges and claims against their town, and the compensation of all town officers, except the compensation of supervisors for county services. In Board of Auditors v. People, 38 Ill. App. 239 (242) it is said: “It will be seen that the action of the Board of Auditors is of the utmost importance, and that their certificate when not impeached has all the force and effect of a final judgment against the town, to be collected by the process of taxation. The Board is composed of town officers, chosen by the people, and presumably worthy of public confidence. It is reasonably clear that in the general discharge of their duties, they are expected to exercise their own judgment and to reject all claims not properly chargeable against the town.” In the MoQrew case, supra, the claim was audited and allowed by the board of town auditors but not so here. Section 121 of the same act provides that the account so audited, and those rejected, if any, shall be delivered with the certificate of the auditors to the town clerk to be kept on file for the inspection of any of the inhabitants of the town. Section 123 provides that the certificate shall contain a statement specifying the nature of the claim or demand and to whom allowed, and this certificate shall be kept by the town clerk on file also for inspection of any of the inhabitants of the town. Section 124 provides what shall be deemed town charges and in People v. Chicago I. & S. R. Co., 248 Ill. 126, it was held that claims against the town are required by statute to be audited and allowed by the board of town auditors before they can be made the basis for the levy and the collection of taxes. While the town might be liable under certain circumstances for food or supplies furnished or services rendered, still these statutory provisions require that a claim against the town shall be audited and allowed by the board of auditors. Section 126 of the statute authorizes the audited accounts to be paid by the supervisor on presentation of the certificate of the town clerk stating the amount and to whom allowed; the date when audited and on what account, which certificate before payment of the amount shall be countersigned by the supervisor. Until audited, allowed and this certificate presented, the supervisor has no authority to pay any claims. The supervisor’s orders in the instant case were viod as they were issued without any statutory authority therefor. No action can be maintained on the orders themselves nor can any action be maintained on the claims because they had never been audited and allowed and were not contractural obligations of the town. Furthermore, the language in the McGrew case to the effect that the overseer of the poor, must, of necessity, have the power to pledge the credit of the town for the support of the poor and that merchants, grocers and tradesmen may deliver the supplies upon the order of the overseer and hold the town liable therefor, cannot be construed as meaning that the order of the overseer of the poor constitutes a contractural obligation against the town before it is audited and allowed.

Prior to the trial and in pursuance to Rule 18 of the Supreme Court, counsel for appellants filed their motion requesting appellee and its counsel to admit certain facts which appellants would be obliged to prove by Edward P. Cleary who lived at that time in South Bend, Indiana. Appellee refused to admit the facts set forth in the notice and appellants therefore were obliged to take the deposition of Cleary at South Bend. The trial court denied appellants’ motion to tax the cost and expense of taking the Cleary deposition against appellee and appellants insist this was error.

The applicable portion of Rule 18 of the Supreme Court provides that in case of refusal to admit any specific fact or facts mentioned in the notice, which can he fairly admitted without qualification or explanation as stated in the notice that then the expense incurred in proving such fact or facts, including a reasonable counsel fee for the time and attention devoted thereto, must be ascertained at the trial and paid by the party so refusing, whatever the result of the cause or issue may be unless at the trial the court certify that the refusal to admit was reasonable or unless the court shall order otherwise. The proof is that the expense connected with taking the Cleary deposition amounted to $40.60, together with $50 attorney fees. Under all the facts as shown by this record, appellee could not have admitted without qualification or explanation the facts set forth in appellants ’ request, and its refusal to do so seems warranted and in our opinion the trial court did not abuse its discretion or act capriciously in denying appellants’ motion.

The judgment was warranted by the law and the evidence and will be affirmed.

Judgment affirmed.


text:
    Mary A. Budlong, Appellant, v. Los Angeles Bible Institute of Los Angeles, California, et al., Appellees.
    Gen. No. 9,329.

      Opinion filed August 16, 1938.
    Hall & Dusher, of Rockford, for appellant.
    William D. Knight, of Rockford, for certain appellees.
    Walker F. Hull, of Rockford, for certain other appellees.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

On or about December 28, 1927, Minnie S. Budlong executed her last will and testament and on February 11, 1928 duly executed a codicil thereto. On February 15, 1931, Mrs. Budlong died, leaving her daughter, Mary A. Budlong, and her two sons, Standish S. Bud-long and Winthrop M. Budlong, her surviving. Her will and codicil were duly admitted to probate by the probate court of Winnebago county and her said two sons were duly appointed executors of her will. In 1935, the daughter, Mary A. Budlong, instituted this suit and in her complaint alleged that her mother, subsequent to the execution of the will and codicil of December 28, 1927 and February 11, 1928 respectively, executed a subsequent will, which had been lost, that said last will expressly revoked the provisions of her former will and codicil and by the-provisions of said last will, the testatrix divided her estate equally among her three children. The prayer of the complaint was that the subsequent lost will be established or in the alternative that if said subsequent last will be not established, that then, the codicil executed on February 11, 1928 be decreed to be void and of no binding effect and the estate of the testatrix pass according to the provisions of the will of December 28, 1927. On April 7, 1937 the chancellor sustained the motion of the executors to dismiss this complaint and thereafter, by leave of court, an amended complaint was filed. This was also dismissed on motion of the defendants and by leave of court a second amended complaint was filed, which was also, upon motion, dismissed. The plaintiff elected to abide by her second amended complaint and from a decree dismissing said second amended complaint for want of equity, the plaintiff prosecutes this appeal.

The will of Minnie S. Budlong consisted of nineteen paragraphs and by it, the testatrix, after making several specific bequests, devised and bequeathed all of the rest of her estate to the People’s Bank and Trust Company of Rockford, and to her said two sons as trustees, and directed the trustees to pay to her daughter one-third of the net income from her estate for a period of 15 years from the date of her death. Paragraph eleven of the will provided that at the end of the 15-year period, the trust should terminate as to the sons but should continue as to appellant during her lifetime and provided that upon her death the corpus should become the property of the sons or in the event of their deaths, prior to the death of appellant, then to other named persons. Paragraph fourteen is as follows : ‘1 Should any beneficiary or beneficiaries under this my last will and testament, contest or oppose the Probate of this, my last will and testament, when the same is offered for Probate in the Probate Court of the County of Winnebago in the State of Illinois, or file a bill to set aside or contest this, my last will and testament, in any Court, then it is my will and I hereby direct that such beneficiary or beneficiaries under this, my last will and testament, as shall attempt to contest or oppose the Probate of this, my last will and testament, or attempt to set aside the same by a Bill in Chancery or other wise, shall immediately lost all bene- • fit under this, my last will and testament, and I direct my Trustees hereunder to pay the income from the share or shares of such beneficiary or beneficiaries under the trust herein created under this, my last will and testament to those who do not contest or oppose the validity of this, my last will and testament, and on the expiration of the Trust herein created such beneficiary or beneficiaries as shall oppose or contest the Probate of this, my last will and testament, shall be and they are hereby barred from any participation of the division of the corpus of my estate on the expiration of the Trust herein created and my Trustees hereunder are directed to divide such share or shares among the beneficiary or beneficiaries under the Trust herein who do not oppose or attempt to contest this, my last will and testament.”

The codicil executed on February 11, 1928 is as follows:

“Whereas in and by my said last will and testament, I did by Paragraph C. of the Tenth Clause and by the Eleventh Clause of my last will and testament leave certain property in trust for the benefit of my daughter, Mary A. Budlong, and

“Whereas, I have discovered that my daughter, Mary A. Budlong, did obtain from me by subterfuge, a deed to Lots 28, 29, 41 and 42 in Block 22 of Bud-long’s Subdivision to the City of Rockford, in the City of Rockford, County of Winnebago and State of Illinois, and refuses to re-convey the same to me, and “Whereas, my said daughter, Mary A. Budlong, is prosecuting suit against me for the appointment of a conservator for me, which said suit was decided in my favor in the Probate Court of the County of Winnebago, and which said suit, my said daughter, Mary A. Budlong, has appealed to the Circuit Court in the said County of Winnebago, and is continuing the prosecution of the same to my great annoyance and trouble;

“Now therefore, unless my said daughter, Mary A. Budlong shall re-convey to me on or before the 1st day of March, A. D. 1928 said Lots Nos. 28, 29, 41 and 42 in said Block 22 of Budlong*’s Subdivision to the City of Rockford, and shall dismiss or cause to be dismissed on or before March 1st, 1928, the said suit for the appointment of a Conservator for me, now pending in the Circuit Court of Winnebago County on the appeal of the said Mary A. Budlong, from the decision of the Probate Court of the County of Winnebago, it is my will and I hereby direct that the said Mary A. Budlong shall not participate in any manner in any estate of which I may die seized or possessed and I direct that the Trust Fund provided for in Paragraph C. of the Tenth Clause and in the Eleventh Clause of my said last will and testament for the benefit of Mary A. Budlong shall be transferred by my Trustees named in my said last will and testament to the Trust Fund in the Tenth and Eleventh Clauses of my said last will and testament for the benefit of Standish S. Budlong and Winthrop M. Budlong and the income therefrom shall be paid to and the final distribution of my estate shall be made to my sons, Standish S. Budlong and Winthrop M. Budlong, in accordance with the provisions of Paragraph D. and E. of the Tenth Clause of my said last will and testament and the final distribution of my estate as provided in the Eleventh Clause of my said will and testament shall be made to Standish S. Budlong and Winthrop M. Budlong, as provided in the Eleventh Clause of my said last will and testament to the exclusion of the said Mary A. Budlong.”

The second amended complaint, in addition to setting forth the will and codicil of the said Minnie S. Budlong, alleged that the codicil was executed without the knowledge of the plaintiff; that no request was ever made upon her to dismiss the appeal in the circuit court, to which court the proceedings for the appointment of a conservator for Minnie S. Budlong had been removed; that she did not know said provisions were contained in any instrument executed by her mother and that her mother never made any request upon her to dismiss said suit or to reconvey the lots described in the codicil on or before March 1, 1928; that plaintiff did not know of said provisions or ever hear thereof until after the death of her mother. The second amended complaint further alleged that for a long time prior to the date of the codicil the brothers of the palintiff had sought to alienate the testatrix from the plaintiff and to cause testatrix to lose the high regard and love which testatrix at all times entertained for the plaintiff; that as a part of said scheme said sons induced their mother to leave her home, which she had occupied with the plaintiff for many years and induced her to go to the home of Standish S. Budlong, where she was kept, contrary to her desires, for a long time and until December 27, 1928; that testatrix had become so depleted by age that she was under the influence of her son Standish, and could not do as she desired; that during this period of time testatrix frequently desired to visit the plaintiff but was prevented from so doing by her sons; that plaintiff went to visit her mother during this time but was not permitted to see her alone; that during this time testatrix wrote many affectionate and loving letters to the plaintiff and requested her sons and members of their families to take her to the home in which the plaintiff resided; that they did so but would only permit testatrix to remain there five or ten minutes and allowed the plaintiff to visit with her mother only in the presence of the persons who brought her; that about June 30, 1930 testatrix got away from the home of her son Standish and returned to the home where the plaintiff resided and shortly thereafter wrote a friend advising her friend that plaintiff had been ill but stating that plaintiff was a good companion to her. Two letters or notes from the mother to the daughter dated March 4 and September 20, 1928 respectively were set out in the second amended complaint, each concluding with terms of love and affection.

The second amended complaint further averred that the statement in the codicil that the plaintiff had by subterfuge induced her mother to deed four lots to her is not true and was not intentionally made by testatrix but is the emanation of the mind of some one else; that on June 20, 1928 the testatrix stated in writing her mental reactions as to the conservatorship suits brought by her against plaintiff and by plaintiff against her and wrote, “incidentally the affection which existed between Mamie and I (meaning the plaintiff and deceased) which would make me wish to give her the four lots she desired and so signed it before a Notary.” It was further alleged that the will and codicil had been admitted to probate more than a year before filing the instant suit; that the provisions in the codicil are in the nature of a forfeiture; that plaintiff had no opportunity to comply with its terms as she knew nothing thereof until long after March 1, 1928; that the will as modified by the codicil is vague and uncertain and should be construed by the court and the court should hold that the codicil was of no force and effect and a decree should be entered finding that plaintiff was entitled to take under the provisions of the will of the testatrix.

Counsel for appellant state that from a reading of the codicil alone it would appear that at the date of its execution the relations of the mother and daughter were strained and that there was not that love and affection which ordinarily exists between mother and daughter and which had existed up to that time “but,” continue counsel, “when viewed in the light of the surrounding circumstances as set forth in the second amended complaint, it is apparent that the relations between them were not strained but close and affectionate.” From this premise, counsel argue that it would be incredible to believe that the mother intended that her daughter should forfeit, without notice, the provisions of the will made for her benefit, if she did not comply with the terms and provisions of the. codicil. Counsel state that the amended complaint discloses that within four days after the date of the expiration of the time within which the daughter was required to do certain things in order to take under the will of her mother, appellant received a letter from her mother, written from Elizabeth, Illinois, in which she sent appellant her love and signed herself “Mother.” No reference was made in this letter by the mother to her property or its disposition, she commented upon the weather and advised her daughter that she expected to return on the morrow. Counsel also argue that in view of the fact that at one time the mother stated she had conveyed four lots to her daughter because of her affection for her daughter, indicated that the conveyance referred to in the codicil was a voluntary one and that therefore her statement in the codicil to the effect that appellant had obtained the deed by subterfuge was untrue and that what the mother really intended to accomplish by the codicil was that before appellant should forfeit what the will gave her she, the daughter, should have been notified of the provisions of the codicil and given an opportunity to comply therewith.

The intention of the testatrix can only be determined from the langniag'e she employed. In the codicil she says her daughter obtained from her by subterfuge a deed to four lots in the city of Bockford and that she, the daughter, refuses to reconvey them to her mother. She also says in the same instrument that her daughter, at that time, February 11, 1928, was prosecuting a suit against her, the object of which was to have her mother placed under conservatorship and states that the prosecution of that suit was causing her great annoyance and trouble. After so stating, she provides that unless the daughter reconveyed these lots to her and dismissed or caused to be dismissed the conservatorship proceedings on or before March 1, 1928, that then she should not participate in her mother’s estate as her will had previously provided. There is no ambiguity or uncertainty here. The language employed can only be read and understood to mean one thing and that is that appellant must within a given period voluntarily do two thing’s, one was to reconvey the real estate and the other was to dismiss the conservator-ship proceedings. The language used indicates that appellant had been requested to reconvey the four lots but had refused. As to the conservatorship matter, the mother states that the proceeding is pending in the circuit court, having been appealed to that court by appellant. The amended complaint discloses that the mother lived more than three years after the codicil was executed and that the will and codicil have both been duly proven and admitted to probate and that the time to contest expired before the original complaint herein was filed. An examination of the provisions of this codicil discloses that its meaning- is not vague or uncertain nor does it need to be construed and a court of equity cannot acquire jurisdiction to construe such an instrument simply because the pleader alleges the contrary. Buckner v. Carr, 302 Ill. 378, where it is said: “"When the record shows that no question requiring construction exists, then the court can not acquire jurisdiction to construe a will by the allegation that there is such a question. ’ ’

It must be kept in mind that a will speaks, as frequently said by the authorities, from the death of the testator or testatrix. When Mrs. Budlong executed her will on December 28, 1927 she must have desired that her property pass as she provided in that instrument. After making certain specific bequests she provided that each of her three children should enjoy one-third of the net income of the residue of her estate for 15 years from the date of her death. The division was equal except appellant’s share was to be held in trust during her lifetime, while the trust, so far as the sons were concerned, was to terminate at the end of the 15-year period. The property which passed by her will belonged to her. She was not required to devise or bequeath any property to appellant. She had a right to impose any legal conditions or restrictions which she desired. And when, in her opinion, her daug’hter did something- which she considered wrongful, she had a right to rescind her former action or annex a condition to her enjoyment of the provisions she had seen fit theretofore to make for her. She did only what the law gave her a right to do. Had Mrs. Budlong so wished she could have given her daughter notice of the provisions of her codicil at the time she executed it or at any subsequent time or she could have made the provisions of the codicil effective only in the event the lots were conveyed to the trustee of her estate within a given period after her death, but she did not do so, and had she done so and such provision was unknown to appellant and the executors and trustees of her estate had not revealed such provisions to her until after the period of limitation had expired, then the law as announced in the cases relied upon by appellant and hereinafter referred to would apply. What the mother’s motives were we do not know. What prompted her to execute the codicil is immaterial. From a reading of the codicil it is apparent that at the time of its execution the mother was of the opinion that her daughter had wrongfully obtained from her a deed to certain property and was wrongfully prosecuting a proceeding to place her mother under conservator-ship and the mother determined that unless she, the daughter, voluntarily reconveyed the real estate to her and voluntarily dismissed the proceedings in the circuit court within a limited time that then she, the daughter, should be precluded from participating in her mother’s estate. In doing this, the mother did what the law permitted her to do and no court, under the guise of construction, would be warranted in holding the provisions of this codicil of no force or effect.

Shackelford v. Hall, 19 Ill. 212, cited and relied upon by counsel for appellant, was a suit to partition the land of which Henry Hall died seized. In his will he devised and bequeathed his real and personal estate to his wife for life, or during her widowhood and at her death to his four named children equally. His will then stated: “It is my desire and will that none of my children now under the age of twenty-one years shall marry until they shall each one of them attain the age of twenty-one years. To this end, I stipulate and will, that in case any one of them now under the age of twenty-one years shall marry, then and in that event, he, she or they shall only be entitled to receive the sum of one dollar out of my estate, as his, her or their portion thereof.” The court held that the devise was one with a condition subsequent and that upon the death of the testator, the widow became vested with a life estate (if not sooner terminated by her marriage), and the remainder became vested in the four named children. As to those children, however, who were, at the time of the death of the testator, under 21 years of age, their estate was subject to be defeated by their marriage before they should attain that age. It appeared that the widow and one of the sons were appointed executors and after the death of the testator, Eliza, a daughter and a devisee, married four months before she attained the age of 21 years but was ignorant of the terms of the will. The court held that such a devise with a condition that the devisee should not marry until he or she arrives at the age of 21 is lawful and a violation of the condition, after notice, would work a forfeiture of the estate devised but that the violation of such a condition will not work a forfeiture if the devisee was also heir at law unless it appears that the devisee had been expressly notified of the condition upon which the devise depended; In the course of its opinion the court, after announcing this rule, said: “And this rule is in harmony with the general principles of law, which always lean hard against a forfeiture of estates once vested, and that it will not allow such forfeiture, where there has been no laches or misconduct. In the case before us, we must assume that the defendant did not know of the existence of the will, and much less of the condition which it contained, that she should not marry till she was twenty-one years of age, under the penalty of forfeiting her interest in her father’s estate. In ignorance of the will, she supposed she was entitled to take as heir without any condition. When we look at this case as it is presented by the record, we see it would be a monstrous piece of injustice to enforce "this forfeiture against her. Here was her elder brother, who was an executor named in the will, knowing of the condition of forfeiture, had an interest in keeping it from her, that she might, by doing the prohibited act, incur the forfeiture, that her portion might go to himself and the other heirs of the testator. Under the influence of this direct interest, he suffers her to go on in ignorance of the will, and marry only four months before she attained the age of twenty-one years, and now he comes forward and claims the benefit of the forfeiture, and insists upon depriving her of the portion devised to her by the will. To sustain this claim, would be to offer a premium for the commission of the most heartless frauds. No better case than this can be imagined, to illustrate the wisdom of the rule of law upon which we rest the present decision. As before remarked, we must assume that she was kept in ignorance of the condition, when it was the duty of the executor to inform her promptly, that she might have conformed to her father’s express wishes, or, if she chose to violate them with her eyes open, she then could have no cause to complain of hardship or injustice. In this particular case, were we even permitted to indulge in probabilities, it is more likely that the executor kept her in ignorance of the condition, that he might share in the spoils, than that she would voluntarily relinquish so large an estate as this is, rather than postpone her marriage for a few months. If the executor did, in fact, do his duty, and give her notice of the condition, it was the easiest thing in the world for him to show that fact. But there is not, even in the petition, the least pretense that she had any knowledge of the condition, nor is there a particle of evidence in the report of the master, or in any other part of the record, that she had the slightest intimation of such a fact. We have not the least doubt that, upon the sound-est principles of law and morality, she must take the estate devised, discharged of the condition.”

In Morris v. Mull, 110 Ohio St. 623, 144 N. E. 436, also cited by counsel for appellant, a mother bequeathed her daughter $2,000 and provided “if my said daughter Myra is not living at the time of my death, or if she does not claim the legacy herein and hereby bequeathed to her, within two years after my death, then and in that event, I do hereby give and bequeath to my said son, Frank S. Mull, to be paid to him at the expiration of two years from and after my death, the said legacy of $2,000.00 herein bequeathed to my daughter Myra.” It appeared that the will was executed on September 17,1918 and nominated her son, Frank S. Mull, executor. The testatrix died on November 22, 1918 and on Dec. 6, 1918 Frank S. Mull was appointed and qualified as executor. On January 7, 1921 he presented his final account as executor and credited to himself the $2,000 legacy, claiming that by reason of the failure of his sister Myra to claim the same within two years from the death of his mother, the same became his property. In May, 1921 the sister Myra first learned of her mother’s death through a sister-in-law and demanded of her brother the payment to her of said sum of $2,000, her brother refused and she brought suit. It appeared that the brother had been the executor also of his father’s estate and had had correspondence with his sister, who then resided in Seattle, on June 18,1918, that she continued to there reside although on November 30, 1918 in his application for letters testamentary in his mother’s estate, he stated his sister’s residence was unknown and in 1921 when he filed his final account, he reported that he did not know the address of his sister and had not heard from her for more than four years last past. The court held that the relation between executor and legatee is that of trustee and cestui que trust, that a fiduciary relation and obligation exists as to notice and good faith and fidelity in discharging the terms of the trust, that by naming her son executor of her estate, the mother meant for him to use the knowledge he had of the whereabouts of his sister, growing out of the settlement of the father’s estate and that he should have endeavored in good faith to locate and notify her of the terms of the mother’s will, that it was inconceivable that the mother intended her daughter should be deprived of her legacy because she had no opportunity to know of the fact of her mother’s death and that it was not to be supposed that the mother intended that her son, her executor, should receive the sister’s legacy as a reward of not having exercised all due diligence to follow up the information and means of information that he had relative to the whereabouts of. his sister, that his conduct amounted to a fraud upon his sister and it would not be conscionable to permit such conduct to take repose behind the fact that the letter of the will or the statute did not in express terms direct greater activity upon his part.

Neither of these cases are decisive of or helpful in disposing of the questions presented by this record. In both cases cited the court held that it was the duty of an executor to exercise good faith in dealing with a devisee or legatee and that good faith required the executor to speak, if as a result of silence, a legatee or devisee might be misled or might be deprived of the benefits of a legacy or devise if the executor had imparted to him the knowledge or information concerning the estate which he, the executor, possessed. We have examined the other cases cited in appellant’s brief but find they are not in point and no good purpose would be served by referring to them.

In its motion to dismiss, one of the reasons assigned by appellees was that appellant has no rights or interest in the estate of Mary A. Endlong because the fourteenth paragraph of her will provided that in the event any beneficiary contested or opposed the probate thereof or filed a bill to set it aside or contest it, that then such beneficiary should lose all benefit thereunder. The motion further recited that the will and codicil were duly admitted to probate on May 5, 1931, that on May 3,1932 appellant filed her complaint to contest the same and that said proceeding was dismissed for want of prosecution on June 22,1933. Counsel for appellees insist that by reason of the foregoing appellant is precluded from maintaining this suit. It is unnecessary for us to consider the validity of the provisions contained in the fourteenth paragraph of Mrs. Budlong’s will. It has been held, however, that such provisions are valid. In re Shirley’s Estate, 180 Cal. 400, 181 Pac. 777; In re Kitchen, 192 Cal. 384, 220 Pac. 301. These matters do not appear upon the face of the amended complaint and the Practice Act, Ill. Rev. Stat. 1937, ch. 110, § 172 [Jones Ill. Stats. Ann. 104.048] requires that a motion containing such matters be supported by affidavit, which was not done.

Under the statute if appellant desired to contest the validity of her mother’s will or codicil, she must have done so by filing her complaint within one year after the date of its probate. Ill. Rev. Stat. 1937, ch. 148, sec. 7 [Jones Ill. Stats. Ann. 110.219]. From the allegations of the amended complaint it appears that the time for filing a contest elapsed before the present proceeding was instituted. The relief sought here is that a decree be entered finding that the codicil was not effective or binding upon appellant because no notice was given her of its provisions and therefore she had no opportunity to avoid the effect thereof. While many of the allegations of the second amended complaint were conclusions of the pleader, the facts therein recited and upon which appellant seeks to predicate such a decree do not, in our opinion, entitle appellant to the relief or any part thereof demanded. The chancellor did not err in sustaining appellee’s motion to dismiss and the decree appealed from will therefore be affirmed.

Decree affirmed.


author: Mr. Justice Huffman

text:
    E. H. LeMenager, Appellee, v. Northwestern Barb Wire Company, Appellant.
    Gen. No. 9,287.

      Opinion filed August 30, 1938.
    Sheldon & Brown, of Sterling, for appellant.
    John W. Blodgett, of Morrison, and Bussian & DeBolt, of Chicago, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

This was a suit brought by appellee to recover for commissions alleged to be due him for services rendered appellant in the procurement of a loan of $1,250,000. The case was tried by jury and verdict returned in favor of appellee. Appellant filed its motion for judgment non obstante veredicto. This motion was denied and appellant brings this appeal based solely upon the action of the trial court in denying its motion for judgment notwithstanding the verdict.

The abstract fails to disclose the rendition or entry of any judgment on the verdict. This court has examined the record in order to determine if any judgment on the verdict was entered by the trial court, and none is found. It appears that appellant filed its motion for a directed verdict at the close of plaintiff’s evidence and at the close of all the evidence, which motions were denied; that the jury was instructed and the case submitted for its determination; that the jury returned a verdict for appellee, whereupon appellant filed its motion for judgment non obstante veredicto, which motion the court denied. The order of denial appears on p. 96 of the record, as follows:

“On this day come the parties hereto by their respective attorneys as heretofore, and this cause now comes on for hearing upon defendant’s motion for judgment non obstante veredicto, heretofore filed on November 7, A. D. 1936, and the court having heard said motion, and the arguments and suggestions of counsel in relation thereto, and being now fully advised in the premises, denies said motion for judgment non obstante veredicto.

“Whereupon the defendant herein by its counsel, prays an appeal from the order of this court to the Appellate Court, second district of this state, which is by the court allowed upon the filing of a bond in the sum of Six Thousand Dollars ($6000.00), with good and sufficient sureties thereon to be approved by this court. ’ ’

Following the above order of the trial court denying appellant’s motion for judgment notwithstanding the verdict, it filed its notice of appeal, and pursuant thereto has brought the record to this court for review.

An appeal from the verdict of a jury will not lie. Harrison v. Singleton, 2 Scam. 21; Evanston v. Dowhen, 55 Ill. App. 217; Breese Coal & Mining Co. v. Olney Elec. L. & P. Co., 109 Ill. App. 539, 540; Mitchell v. Eareckson, 250 Ill. App. 508, 515. There must be a judgment entered on the verdict before there can be a review thereof. The verdict of a jury before it has received the sanction of the court, by passing into a judgment, is not subject to review on appeal in actions such as the present one. At common law it was a well settled rule that in all cases, a judgment must precede an execution, and while this rule is now subject to many statutory innovations, yet in actions such as the instant case, no execution for the debt could issue without a final judgment against the defendant. Hence a judgment in this case could not be regarded as final for purposes of appeal until it had been entered in such a manner that execution might issue thereon.

An order granting or denying a motion for judgment notwithstanding the verdict, is not appealable, because such an order is not a judgment, but merely a ruling that the moving party is or is not entitled to a judgment. Until the judgment is entered there has been no legal determination of the cause, and nothing to appeal from exists. Judgments must be first entered as ordered and the appeal taken from the judgment. The order denying appellant’s motion for judgment notwithstanding the verdict, merely reaffirmed the court’s ruling in denying appellant’s motions for a directed verdict. An order for a judgment upon which no judgment is ever entered, is not a final judgment within the meaning of the statute so as to render it appealable. Appeals lie from final judgments, orders or decrees. Ch. 110, sec. 201, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.077.]

In a suit at law such as the instant one, a judgment can speak but by the record. In this case the record fails to show that any judgment was ever entered on the verdict. “The verdict of the jury is the basis upon which the judgment of the court is entered and is not the judgment of the court.” People v. Montgomery, 365 Ill. 478, 481. Where the record fails to show that final judgment has been rendered by the trial court upon the verdict, there is nothing for this court to review, and the appeal will be dismissed.

Appeal dismissed.


author: Mr. Justice Hueeman

text:
    M. A. Adams et al. (Charles H. Albers, Successor Receiver of Bank of Bishop Hill) Appellant, v. A. F. Deem et al., Appellees.
    Gen. No. 9,330.

      Opinion filed August 30, 1938.

      Albert E. Bergland, of Galva, for appellant; Reynolds M. Everett, of Galva, of counsel.
    Joseph L. Shaw, of Greneseo, for appellees.
   Mr. Justice Hueeman

delivered the opinion of the court.

This was a creditor’s bill brought by appellant receiver to set aside an alleged fraudulent conveyance of a 160 acre tract of land located in Henry county. Appellant became a judgment creditor of A. F. Deem by virtue of a judgment recovered against him on January 5, 1933, in the circuit court of said county, in the sum of $3,864.14. Execution issued thereon against the judgment debtor. He filed no debtor’s schedule. The sum of $442.50 was realized by appellant on the judgment. Subsequently, this suit was brought by appellant against the said A. F. Deem and Clara, his wife, and their son A. Charles Deem and Dorothy, his wife, and Theodore Titlow, tenant of the premises, to set aside an alleged fraudulent conveyance thereof made by A. F. Deem and wife to their son Charles.

The complaint was in the usual form, alleging that while A. F. Deem was indebted to plaintiff, the conveyance was made without consideration, and was but a sham and device for the purpose of hindering and defrauding the appellant and other creditors. The cause was referred to the master, who found that the deed in question, which recited a consideration of one dollar and other considerations, was not real, but was a sham and made with the intention of hindering, delaying and defrauding appellant and other creditors of the said A. F. Deem; that no consideration was in fact paid by the son Charles to his father for such conveyance, and that the son held the premises in trust for the use and benefit of his father and for the purpose of preventing a levy and sale thereof by virtue of execution issued under appellant’s judgment. The master recommended a decree in favor of appellant and against defendants; that the deed in question be set aside and vacated as to appellant, and the property subjected to sheriff’s sale under execution to satisfy appellant’s judgment and costs. A. F. Deem and son Charles, filed exceptions to the master’s report, excepting generally to each finding therein and concluding with the allegation that the same was against the law and the evidence. This last statement reflects the import and effect of the exceptions filed. They were sustained by the chancellor, and the complaint dismissed for want of equity. Appellant (complainant below) prosecutes this appeal from the above action of the trial court.

The master found that appellant was the duly qualified and acting receiver of the bank of Bishop Hill; that on January 5, 1933, his predecessor receiver recovered judgment in the circuit court of Henry county against A. F. Deem for the sum of $3,864.14 and costs; that thereafter execution issued on said judgment; that the defendant failed to file debtor’s schedule and the sum of $442.50 was recovered by the sheriff from the defendant by virtue of said execution; that the balance of the above judgment remains unsatisfied. The master further found that the defendant A. F. Deem was the owner of the premises in question herein; that on July 1, 1930, he conveyed said premises to a son, A. Charles Deem, for a pretended consideration of one dollar and other considerations; that said farm on the day of the above conveyance was reasonably worth $32,000, and was then subject to a first mortgage lien to the First National Bank of G-alva, Illinois, in the principal sum of $12,000; that Clara W. Deem is the wife of A. F. Deem; that Dorothy Deem is the wife of A. Charles Deem, to whom she was married subsequent to July.l, 1930; that Theodore Titlow is a tenant on the property. The master next found that on and prior to July 1, 1930, A. F. Deem was president of the First National Bank of Galva, and that his son Charles was working in said bank, and closely associated with his father in his business affairs; that the son knew his father’s financial condition; that the son owned the home where his father and mother lived, by a conveyance from his mother; that no rent was paid for the occupancy of the home; that Charles also held 80 acres of land near G-alva and 320 acres in Nebraska, conveyed to him by his parents, and that he owned the automobile used by the father in his present business as salesman; that in addition to the above, the son held a 40 acre tract in Knox county, conveyed to him by his father subsequent to July 1, 1930, and which he had since sold. The master found that by virtue of the foregoing transactions, the father had divested himself of record title to all real estate owned by him. It was further found that after the conveyance of the farm here in question, the father continued to operate and manage it in all respects as if he was still the owner; that he leased the farm in his own name from February, 1932, to February, 1933, to certain tenants who were in no way advised that the father was not the owner thereof; that he visited the farm during the lease period every two or three weeks, and directed the management thereof as landlord; that he entered into a partnership arrangement with the tenants in respect to raising livestock and arranged for the selling thereof and collecting the money therefor; that the father carried a general account at the bank in his own name, in which account the proceeds from the livestock and the farming operations were deposited; that the defendants A. F. Deem and Clara, his wife, and the son Charles, all drew upon this general account; that after the transfer of the farm, the general account was continued as usual, in the name of the father, and the taxes assessed against the farm were paid from such account ; that livestock purchased was paid for from said account, and the proceeds therefrom deposited in said account; that the father claims the money for the transactions so carried on by him with reference to the farm, was furnished by the son, but that no corroborative evidence appeared to substantiate such claim.

Separate answers were filed by the several defendants. A. F. Deem answers, admitting the indebtedness and judgment, and the conveyance of the farm in question to his son Charles, as claimed. He denies that the conveyance of the farm rendered him insolvent; denies any intention to defraud the plaintiff; alleges a loan of $1,000 from his son Charles, and a further indebtedness to his son of $4,372.10 on account of certain money intrusted to him by Cynthia Turner, with directions that he should deliver the same to his son Charles as a gift from her. The answer sets up a mortgage of $12,000 on the farm; alleges a total indebtedness of $5,372.10 by the father to the son on account of the two foregoing items; and alleges that the equity in the farm over and above the amount of the mortgage and the debt of the father, was given to the son as a wedding present in view of his coming marriage. The defendant A. F. Deem further denies that he was in failing circumstances at the time of the conveyance, and denies all charges of fraud in the transaction. The answer of the other parties in interest, do not vary in material particular from that of A. F. Deem.

The evidence of the father discloses that Cynthia Turner was a second cousin living in Sterling, Illinois; that she had been a widow for about 15 years; that prior to her moving to Sterling, she had been a resident of the State of Iowa; that she was past 80 years of age, and physically unable to go from Sterling to Calva; that at various times, he would go to Sterling to see her, where she delivered to him money by way of certificates of deposit, bank drafts and checks, which he claims totaled the aggregate sum of $4,372.10; that Mrs. Turner died about four years prior to the trial of this cause, and that the above transactions had between him and Mrs. Turner occurred during the latter two years of her lifetime. He further states that he had looked after her business affairs during the latter years of her life; and that a joint checking account was carried in her name and his name in the bank at Sterling, where she did her banking business. It is claimed by Mr. Deem that the money he received from Mrs. Turner was given to him for delivery to his son Charles, as a gift, but that he did not so deliver it, but deposited the same in his own account in the First National Bank at Q-alva, and used it in the same manner as he used his other funds. It appears that his son Charles was working in the bank at the time, as cashier, and knew of his father’s receiving the above money from Cynthia Turner, as well as his disposition and use thereof. Cynthia Turner left no estate except her household furniture, and no administration was had of her estate. Mr. Deem states that at the time of her death, she had intrusted all of her money to him, consisting of the above total, and that he never gave her any receipts therefor.

It was claimed by A. F. Deem that the farm was conveyed to his son in payment of a debt of $5,372.10 owed by him to his son; that the debt consisted of two items, namely, $1,000 for cash advanced to him by his son in 1924, at a time when the son was yet in school. It is claimed by the father that this money came from a savings account in the name of his son carried at the bank in Qalva, of which his father was president; and second, the sum of $4,372.10, being the total claimed by Mr. Deem to have been received from Cynthia Turner, as aforesaid, and which money he claims was received for the purpose of delivery to his son as a gift from Cynthia Turner. It is conceded that at the time of the conveyance, the land in question was worth $32,000, and incumbered by a $12,000 mortgage which Mr. Deem had placed thereon with his bank after becoming owner of the farm. The father urges that the amount of the above mortgage indebtedness, together with that of his personal indebtedness to his son, namely, $17,372.10, was a lien and debt justly due and that the equity existing in the premises, consisting of some $14,000, was intended to be given to the son as a wedding present. Testimony was offered by two nephews of Cynthia Turner, that the money delivered by her to A. F. Deem was for the purpose of safekeeping.

The master found, with reference to the $4,372.10 claimed to have been received by the father from Cynthia Turner as a gift to his son, that there was not sufficient evidence going to support such claim. The master further found that the father by the transfers of his lands to his son, rendered himself insolvent so far as his visible personal property applicable to claims of creditors was concerned; that he retained insufficient assets to pay his indebtedness to his creditors on the date of the transfer of the farm in question; that such assets as he did claim to have retained, were doubtful and had no market value; that the father’s indebtedness on July 1, 1930, amounted to about $48,000, and that his assets at such time were not in excess of $31,000; that none of the transactions made between the father and son, or claimed to have been made by them, were such as were customary among business men in ordinary business practices; that no interest appears to have ever been charged or collected ; that the father was in failing financial circumstances, and that the family affairs were not conducted in a manner and mode as usual transactions are conducted between debtor and creditor.

The conclusion of the master was to the effect that the deed in question by A. F. Deem and wife, to their son Charles, was not a bona fide transaction, bnt was a sham, made with the intention of hindering, delaying and defrauding the complainant and other creditors of the said A. F. Deem, from collecting their just demands ; that no consideration was in fact paid by the son to the father for said conveyance; that the son holds the property in trust for the father for his use and benefit and for the purpose of preventing a levy and sale thereof by virtue of execution issued under the complainant’s judgment. The master found the equities to be with the complainant below, and recommended that a decree be entered, setting aside and vacating the conveyance in question as to the complainant, and that the complainant be authorized to proceed under execution to have the property described sold at a sheriff’s sale to satisfy plaintiff’s judgment. The master found that $442.50 had been collected on the judgment and was to apply as a credit thereon, and found that the premises were subject to the $12,000 mortgage.

The rule is well established that the validity of a voluntary conveyance as against creditors, is to be determined by the question whether it directly tends to impair the rights of creditors, and it is of no moment that property remaining in the grantor’s hands after such conveyance, has a nominal value in excess of the amount of his indebtedness, if subsequent events show that the property so remaining in his hands was insufficient to discharge his liabilities. Birney v. Solmon, 348 Ill. 410, 414; Wright v. Risser, 290 Ill. App. 576, 584; Kennard v. Curran, 239 Ill. 122, 128. In cases of this character, proof of fraud is seldom possible by direct evidence, and recourse to circumstantial evidence becomes a necessity, and fraud may be proved by circumstances which convince the mind of its existence. Swiney v. Womach, 343 Ill. 278, 288; Schwarz v. Reznick, 257 Ill. 479, 485; Reed v. Noxon, 48 Ill. 323. When the conclusion necessarily results that a conveyanee was made with fraudulent intent to defraud, hinder or delay creditors, it makes no difference that other motives were combined with such purpose. Phillips v. Kesterson, 154 Ill. 572, 574. The fact that the grantor denies he intended to defraud creditors, is not conclusive upon the court if from other evidence or from the inherent improbability or contradictions in the testimony, the court is of a contrary opinion. Kennard v. Curran, supra, p. 129; Marmon v. Harwood, 124 Ill. 104, 110. With certain qualifications, the rule has long been recognized that a fraudulent intent will be presumed from the fact that a grantor making a voluntary conveyance is indebted at such time. State Bank of Clinton v. Barnett, 250 Ill. 312, 318. Where an immediate member of a family is preferred as a creditor, there must be clear and satisfactory proof of a valid existing debt which could be enforced and payment exacted, and the fact of the family relationship is proper to be considered in connection with other evidence to impeach the transaction. Bartel v. Zimmerman, 293 Ill. 154, 163. One found to be insolvent after having made a voluntary conveyance, has the burden of disproving the implication of fraud as to pre-existing creditors, arising from the making of such conveyance. Dillman v. Nadelhoffer, 162 Ill. 625, 631.

Mr. A. F. Deem was a stockholder and director in the Bank of Bishop Hill, owning thirty-five shares of stock therein. He was president of the First National Bank of G-alva, as stated above, owning twenty-five shares therein. This latter bank also went into receivership. He was a large owner of stock in the Ralph C. Dixon Company, for which he owed $30,212, and which stock he had put up as collateral to secure his notes for the purchase money therefor. He also had a $500 bond on the Stevens Hotel in Chicago, and a scattering of stocks and bonds in oil companies and railroads, which were of a very poor grade. It is the contention of Mr. Deem that these remaining securities left him solvent. These securities were highly speculative in character and of uncertain value. Some of them were hypothecated. The result was, their value proved to be inconsequential. He owned no real estate after 1930. He was an indorser on about $35,000 worth of paper in addition to the farm mortgage notes. On the question of his remaining assets after the transfer of the land in question, we are in accord with the finding of the master, that the same were highly speculative in character and of uncertain value, and that he did not then retain or possess property sufficient to meet his liabilities. Subsequent events disclosed the insufficiency of such assets. Assets and securities of this character are to be considered in the light of their speculative character. Dillman v. Nadelhoffer, supra, p. 631. Objections is made with reference to evidence concerning certain real estate transfers to Charles by his parents, which were made some years before the indebtedness arose upon which this judgment is based. Most of those transfers were too remote to be of any significance and it is apparent that the master did not consider them in determining the issues in this case. The only transfer of property which is complained of in this suit is that of the farm in question, and that conveyance appears to have left the grantor without any available means with which to pay the plaintiff’s debt.

The facts and circumstances in evidence in this case, support the finding of the master. We do not find sufficient evidence going to establish a gift from Cynthia Turner to Charles Deem for the $4,372.10 as claimed. The evidence further supports the fact that the father was in failing circumstances at the time of the conveyance. It is not unreasonable to assume that he knew the financial condition of the bank of which he was president, as well as his own financial circumstances as they then existed. Subsequent events prove his failing financial circumstances. The court should not have dismissed the bill for want of equity, but should have entered a decree setting aside the deed in question and granting relief to appellant as prayed, and as recommended in the master’s report.

The decree of the circuit court is therefore reversed and the cause remanded for further proceedings in harmony with the views herein expressed.

jReversed and remanded.