text:
    George B. Robbins, II, Appellant, v. Continental National Bank and Trust Company of Chicago et al., Appellees.
    Gen. No. 42,547.

      Opinion filed December 13, 1944.
    Released for publication January 4, 1945.
    Russell & Bridewell and Cassels, Potter & Bentley, all of Chicago, for appellant; Kenneth B. Hawkins and David A. Bridewell, both of Chicago, of counsel.

      Winston, Strawn & Shaw, of Chicago, for certain appellee.
    Mayer, Meyer, Austrian & Platt, of Chicago, for certain other appellee; Walter H. Jacobs, Arthur D. Welton, Jr., Paul M. Godehn and Durmont W. McGraw, all of Chicago, of counsel.
   Mr. Justice Lupe

delivered the opinion of the court.

On July 10,1940, George B. Bobbins, II, filed his complaint in the circuit court as case number 40 C 6371 to vacate and set aside a decree of the superior court which was entered on July 14, 1939. The complaint filed is in the nature of a bill of review wherein it is claimed the decree should be reviewed and set aside because of errors of law on the face of the decree. The decree complained of was entered in the proceedings instituted by the Continental National Bank and Trust Company of Chicago as plaintiff, for the construction of a postnuptial agreement dated July 1, 1920, between George B. Bobbins and Lillian E. Bobbins, his wife. Said decree sought to be reviewed construed the postnuptial agreement of July 1, 1920 as not contrary to public policy of this State, and held that the same created a trust and was not in violation of the Statute of Wills of the State of Illinois. Plaintiff argues (1) that the postnuptial agreement appears on its face to relieve a husband from his common-law duty to support his wife and was intended to create a permanent separation between the husband and wife who were parties to said contract, and to stimulate a divorce; (2) that no trust could be created under the terms of the postnuptial agreement as the agreement contains no words conveying title to the Continental National Bank and Trust Company; and (3) the agreement is void as in violation of the Statute of Wills of the State of Illinois, because the agreement provides for distribution of securities' and income therefrom after the death of George B. Bobbins.

Defendant contends that the trial court was correct in its ruling, and that the plaintiff was barred from maintaining this proceeding, as the court below was without jurisdiction of the subject matter; that plaintiff is barred by laches and limitations and the decree of July 14, 1939 is res judicata as to the plaintiff, as leave to appeal therefrom was denied him in this (Appellate) court on April 23, 1940.

The Civil Practice Act applies in the present case as the decree was entered in the year 1939. A bill of review or a bill in the nature of a bill of review may be filed within one year from the date of the entry of the decree.

At the time of the entry of the decree sought to be reviewed, plaintiff was a minor. It is well settled in this State that after a decree to which a minor is made, a party, the minor may, during his minority, file his complaint to impeach such decree for error appearing upon its face, or may exercise the right after he becomes of legal age, within the time during which he could prosecute a writ of error to reverse the decree. (Crane v. Stafford, 217 Ill. 21; Johnson v. Buck, 220 Ill. 226; Denk v. Fiel, 249 Ill. 424; Sharp v. Sharp, 333 Ill. 267.) Plaintiff became of legal age on August 16,1939, and (under the law of this State in effect at the time of the entry of the decree) had one year from said date within which to file his complaint. (Schoknecht v. Prassas, 320 Ill. 423; Genz v. Genz, 254 Ill. 161; Knaus v. Chicago Title & Trust Co., 365 Ill. 588.)

Plaintiff filed his complaint in the circuit court wherein he sought to review a decree that was entered in the superior court of Goolc county. The circuit court, on motion of the defendants, properly ruled that it had no jurisdiction to entertain the complaint, as it sought to review a decree of the superior court. (Simmons v. Hefter, 308 Ill. 292, 293.) One court of equity has no authority to exercise a revisory jurisdiction over the decrees of another court of equity by correcting errors or setting aside or reversing a decree. Circuit and superior courts of Cook county have concurrent original jurisdiction, but neither court has any jurisdiction over the proceedings or records of the other. (Mathias v. Mathias, 202 Ill. 125; 30 C. J. S., Equity, § 637; 10 R. C. L. 568; Sheaff v. Spindler, 339 Ill. 540, 551; People v. Sterling, 357 Ill. 354, 367.) On October 24, 1940, the circuit court entered a further order finding that it lacked jurisdiction of the subject matter of plaintiff’s complaint, and ordered the cause transferred to the superior court. Thereupon, the complaint was filed in the superior court and motions were made by certain defendants alleging the complaint was barred by limitation and that the superior court had no jurisdiction. The motions were overruled and the defendants then answered, and upon a final hearing of said cause a decree was entered dismissing the complaint for want of equity.

It is urged that-the superior court was without jurisdiction of the subject matter because the order of transfer of October 24, 1940 entered by the circuit court was void, as the circuit court had dismissed the proceedings on October 4, 1940 on the ground of want of jurisdiction, and therefore, the order of dismissal not having been vacated, there was no cause before it to be transferred, and further, that since the circuit court was without jurisdiction of the subject matter the superior court could not have acquired jurisdiction by virtue of the order of transfer, since the jurisdiction of the superior court depended entirely upon the order of transfer, and that the superior court was devoid of jurisdiction of the subject matter as was the circuit court of Cook county.

We agree that the circuit court had no jurisdiction of the subject matter of this suit, as that court did not have revisory powers over the decree of the superior court, and that it had no power to alter or reverse a decree entered in the superior court. The circuit court had the power under ch. 146, sec. 36, Ill. Rev. Stat. 1941, to transfer the cause to the superior court (Central Illinois Public Service Co. v. Industrial Commission, 293 Ill. 62) and the only point that could be urged is, after the case was dismissed by the circuit court nothing remained to be transferred. However, when the complaint in the present case was filed in the superior court it became and was a suit pending in that court, regardless of the fact that it had previously been filed in the circuit court. Its validity was derived from its being filed in the superior court, and not from the order of transfer of the circuit court. The order of transfer entered by the circuit court could not affect in any way the right of plaintiff to file his complaint in the superior court. We must, therefore, treat the proceedings as if originally filed in the superior court on the day that the complaint was actually filed in the superior court. Defendants have answered the complaint filed in the superior court, and it must be held that the present proceeding is based upon the complaint and answer filed in said cause. Plaintiff claims that an infant who has been wronged by the decree of a court can maintain an original bill for relief and that, unlike an adult, he may question such a decree without applying for a rehearing or filing a bill of review.

This doctrine was first laid down in the case of Loyd v. Malone, 23 Ill. 43, and has since been followed by our courts, the last of which cases is Sharp v. Sharp, 333 Ill. 267. The above cases establish the right of a minor to file his complaint to impeach a decree for fraud or errors apparent on the face of the decree. We are unable to find a holding wherein a minor had the right to file an original complaint to impeach a decree for errors apparent on the face of the decree in any court other than the court wherein such a decree is entered. We do not feel that the decisions relied upon by plaintiff in effect hold that a minor is placed in a different category, although they state the principle that a minor may file an original bill.

A court without jurisdiction of the subject matter of a cause cannot have jurisdiction conferred upon it merely because a minor is the plaintiff. The superior court had jurisdiction of the subject matter, not because of any prior proceedings in the circuit .court, but because the suit was properly filed in the superior court. The defendants did not have to follow the case in the superior court, and were entitled to be served with process from the superior court, but they did appear, and the court thereby obtained jurisdiction of the persons of the defendants. Thus the superior court had jurisdiction of the persons and of the subject matter of this cause.

The motion filed by certain defendants in the superior court, alleging that the plaintiff was barred by laches and limitations was overruled and the court then proceeded to a decree upon the pleadings filed in the cause and upon the merits of the case. The defend-' ants have filed no cross-error in this court attacking the order of the court overruling the motion of the defendants which alleged that the complaint was barred by laches and limitations, and have made no argument in their briefs on that point. We therefore hold that the defendants have waived the point made with reference to laches and limitations.

The parties, through their respective attorneys, have entered into a stipulation of facts, so that there are no controverted questions as to the facts in this record. The postnuptial agreement involved in this proceeding is dated July 1, 1920 and was entered into between George B. Bobbins, husband, Lillian E. Bobbins, his wife, and the Continental National Bank and Trust Company of Chicago, as trustee. It provided in its preamble that George and Lillian were living separate and apart and that he desired to provide for the support and maintenance of Ms wife, and he agreed to pay his wife at the office of the trustee the sum of $1,500 per month, commencing on the 10th day of July 1920, and payable monthly in like amounts for and during the life of his wife, and that should he die before the death of his wife the obligation to make the monthly payments of $1,500 should remain and be binding upon his heirs, executors and administrators and upon his estate. To secure said monthly payments he had deposited with the trustee securities worth not less than $300,000, and agreed the total value of the securities deposited should at all times be maintained at not less than $300,000. It further provided that he released unto her and she released unto him all right, title and interest (including the contingent right of dower and homestead, right of inheritance, and all other rights under any statute of descent or distribution . . . ) wMch they had or at any time in the future might have, in any of the property owned or acquired by the other. The contract further provided that she would not “in any manner, directly or indirectly, incur any indebtedness for wMch he may be held liable; that she will promptly pay any and all debts or obligations which she may incur or for which she may be liable,” and contained the further provision, “This agreement is expressly, made and intended by each of the parties hereto, irrespective of whether the relation of husband and wife now existing between the parties shall continue, to be a mutual release, relinquishment and conveyance of all right, title and interest that each now has or hereafter during the lifetime of each or at the death of either of said parties hereto may have, in all property both real and personal of the other, respectively; and it is the intention of the parties hereto mutually to release and waive all benefit of the laws of the State of Illinois relating to husband and wife, dower and homestead, and forever to bar each other respectively from any action to recover any interest that either may now have or hereafter during the lifetime or at the death of either of the parties hereto, may acquire in the property, both real and personal, of the other. ’ ’

At the time of the making of the contract, George B. Robbins and his wife were living separate and apart. On July 10,1922, about 18 months after the agreement was entered into, the wife filed suit for divorce against her husband in the superior court of Cook county and obtained a decree on the ground of desertion, which decree recited, “The question as to alimony and solicitor’s fees has been settled between the parties out of court, and therefore no provision is made for the same herein.” In 1932 there was default by Robbins in the $1,500 monthly payment and, in accordance with the provisions of the postnuptial agreement, the trustee took over the collection of income from the deposited securities.

The plaintiff herein is the grandson of George B. Robbins and is a legatee under his will, and as such interested party filed his original complaint in the nature of a bill of review to vacate and set aside the decree of July 14,1939. The trial court dismissed the complaint and this appeal followed.

It is contended by plaintiff that the agreement of July 1, 1920 was intended to create a permanent separation of the spouses and to stimulate a divorce.

We have carefully examined the record and nowhere can it be found that the agreement created or attempted to create a permanent separation of the parties, or that it stimulated a divorce. On the contrary, it shows that the parties had been separated for some time prior to the agreement and we must assume that the separation was due to the fault of the husband, as the wife secured a divorce some 18 months thereafter, charging desertion, and that under the law at the time of the entry of the decree the period of desertion required was at least two years prior to the institution of the suit.

Plaintiff further contends that the postnuptial agreement of July 1, 1920 was void from its inception for the reason that under the agreement the wife discharged or released her husband from his common-law duty to support her and therefore the agreement is contrary to the public policy of this State. A contract between husband and wife in which it is attempted to have a wife discharge her husband from his legal obligation to support and maintain her is contrary to public policy and, therefore, void. (Lyons v. Schanbacher, 316 Ill. 569; VanKoten v. VanKoten, 323 Ill. 323; Vock v. Vock, 365 Ill. 432; Berge v. Berge, 366 Ill. 228; Sibert v. Suhy, 315 Ill. App. 147.) A wife may, by a postnuptial contract with her husband, based upon a valuable consideration, release to him her rights in his property and estate, and thereby extinguish all her rights as a widow, including the right of dower, and the fact that the parties are living separate and apart does not affect the validity of the contract. (Stokes v. Stokes, 240 Ill. 330; Edwards v. Edwards, 267 Ill. 111; French v. French, 302 Ill. 152; Kohler v. Kohler, 316 Ill. 33; VanKoten v. VanKoten, 323 Ill. 323.) It is asserted by plaintiff that the agreement is not a legal separation agreement providing for support and maintenance of a wife living separate and apart from her husband, and that the agreement falls within that class of agreements condemned by the supreme court, as it provides for the release of the legal obligation of the husband to maintain and support his wife.

There is no release of support (in so many words) by the wife, so plaintiff claims that such release of support can be reasonably inferred from the two provisions of the agreement: (1) that she would not, directly or indirectly, incur any indebtedness for which her husband might be liable, and that she would promptly pay all her debts; and (2) that she released and waived all benefit of the laws of the State of Illinois relating to husband and wife.

The contention is thus made that the release of support by the wife can be fairly inferred from these provisions of the contract. With this contention we cannot agree.

The preamble to the agreement recites that the parties are living separate and apart, and that the husband desires to provide for the support and maintenance of the wife. There is no release in appropriate words by the wife of the legal obligation of the husband to support and maintain the wife. In every case in which our courts have held that the contract between the husband and wife was contrary to public policy, there was a direct release in so many words of the legal obligation of the husband to support and maintain the wife. In the case of Lyons v. Schanbacher, 316 Ill. 569, the contract contained a provision that the wife “hereby wholly and absolutely releases and relinquishes and waives all legal right which she may have to support or contributions for her support from her said husband, John E. Lyons, from this time henceforth.” This provision rendered the agreement invalid. In the case of VanKoten v. VanKoten, 323 Ill. 323, the court in referring to the agreement between the parties said: “In the instant case one of the material provisions of the agreement was ‘the said party of the second part hereby releases all claims, rights, title or interest to the party of the first part from making any claim for support or maintenance in any manner from the party of the first part.’ ” This provision was held to invalidate the contract. In the case of Vock v. Vock, 365 Ill. 432, the court said (p. 433): “At the time of their separation they entered into a postnuptial contract under the terms of which the husband paid the wife $5,000.00 in cash for a release of all her rights in his property and from all obligations of future support.” Because of the provision with reference to the release of support, the court held the agreement void as contrary to public policy. In the

case of Berge v. Berge, 366 Ill. 228, the court in referring to the agreement between the husband and wife said (p. 230):

“The agreement between Berge and wife contained, among further provisions, the following: ‘That the parties will live apart and neither will remarry unless they agree to vacate this agreement; that neither will molest the other; that Lena shall not contract any debt for which Fred shall be liable, and neither she nor any other person or persons on her behalf or with her authority, consent or procurement, shall or will institute any suit or civil process or proceedings whatever against the said husband, either for separate maintenance, alimony or support, it being expressly understood and agreed that the aforesaid conveyances by the parties shall be in lieu of all rights of said parties hereto,’ etc.”

The court, in passing on the said agreement, said (p. 231.):

“She undertook to bind herself not to bring, or permit to be brought, any proceedings against her husband to enforce such legal duty. Such release on her part was clearly a material consideration for the making of the instrument. Husband and wife may not make a contract by which an essential condition thereof is, that the wife discharges her husband from his legal obligation to maintain her. Such contracts are against public policy.”

In the case of Sibert v. Suhy, 315 Ill. App. 147, the agreement between the husband and wife contained a release in the following words:

“of all mutual right of support, and it is the intention of the parties hereto to mutually release and waive all benefit of the laws of the State of Illinois, relating to husband and wife, dower, homestead, mutual support, etc., and forever bar each other, respectively, from any action to recover any separate maintenance or support.”

The court held the agreement void as against public policy.

Thus all of the cases to which we have been referred, hold separation agreements invalid as contrary to public policy because of a wife’s release of the legal obligation of the husband to maintain and support the .wife, contain direct language which attempts to release the husband of such legal obligation.

In the adjudicated cases where there is no direct release of support but an agreement between a husband and wife who are living separate and apart, providing for the payment of some monthly sum for the support of the wife, our courts have held that a post-nuptial agreement adjusting and settling their mutual rights in each other’s property may be lawfully made, and a provision in any such contract that the husband will pay to the wife or to a trustee a certain sum each month for her support is not contrary to public policy. In the case of Shankland v. Shankland, 301 Ill. 524, the court said (p. 532):

“In Bishop on Marriage, Divorce and Separation (Vol. 1, sec. 1278) it is stated as the law that where a separation has already taken place between husband and wife, or it is in agitation and immediately follows, a provision for the wife’s support, (separate maintenance) if on an adequate consideration, will be enforceable, but will not if made during cohabitation and no separation ensues. It was held by this court in Ross v. Ross, 69 Ill. 569, that where a husband is living separate and apart from his wife by consent, or if he acquiesces in her leaving him, he is liable for her necessary support. In Phillips v. Meyers, 82 Ill. 67, it was held that where a husband is under legal obligation to support his wife, an agreement on his part to pay money to a trustee for her use, without any promise or agreement on her part, is founded on a sufficient consideration and binding on Mm and enforceable at law.”

In the case of French v. French, 302 Ill. 152, a wife was living separate and apart from her husband without any fault on her part, and the husband made an agreement to pay her, so long as they should live separate and apart, $175 per month on the first of each and every month. The court in deciding that such contract was not contrary to public policy said (p. 161):

“We do not tMrik the agreement entered into between the parties for separate maintenance comes within the rule that makes such agreements void as against public policy.”

In the case of VanKoten v. VanKoten, 323 Ill. 323, the court said (p. 326):

“Agreements between husband and wife for a separation are not per se illegal or invalid, but where a husband and wife are living separate and apart, or where the circumstances are such that they can no longer congenially live together with the mutual confidence and implicit faith in each other wMch the sanctity of the marriage relation demands, or where the relations between them are such as to render the separation necessary for the health or happiness of one or the other of them, an agreement between them, fairly and understandingly entered into, adjusting and settling their mutual rights in each other’s property, may be lawfully made (Lyons v. Schanbacher, 316 Ill. 569), and a provision in such contract under such circumstances that the husband will pay to the wife a certain sum each month for her support is not void as against public policy.”

In the case of Henderson v. Henderson, 290 Ill. App. the court said (p. 345):

“The parties can make no valid agreement to live in separation, because cohabitation is a legal duty arising out of the marital relation. But the husband may bind himself to support the wife, since that is but one of the duties he assumed at marriage, and such agreement does not violate the policy of the law. Nelson on Divorce, Sec. 553.”

In the case of Henderson v. Henderson, 290 Ill. App. 448, the court said (pp. 460, 461):

“The separation agreement itself was valid and not contrary to public policy. It was entered into according to its terms after the parties had separated and were living apart. It contained a provision under which the husband was obligated to support the wife and the courts have recognized the right of a husband and wife to enter into an agreement to live separate and apart, provided provision is made for the wife’s support in the agreement. ’ ’

The provision of the agreement between George B. Bobbins and Lillian E. Bobbins that she would not incur any obligations for which her husband might become liable and that she would pay her debts promptly is not a provision for the release of the support of Lillian E. Bobbins. In the case of Kohler v. Kohler, 316 Ill. 33, the contract contained a provision “that the wife could not incur or contract any debts on the husband’s credit,” and the court sustained the contract as a valid contract. The provision may have been inserted in the contract here involved for the purpose of ■protecting George B. Bobbins from the annoyance of suits by creditors of Lillian E. Bobbins. Bobbins probably did not want any creditor of Mrs. Bobbins to appeal to him for payment of an obligation of his wife. He probably felt that as long as he was paying the $1,500 per month for the support of his wife, that she.should not use the money provided by him for her support for purposes other than her support and then refer her creditors to him. This was perfectly legitimate and it was the duty of Lillian E. Bobbins under the agreement to expend the money provided for her support and not expend it in other ways and leave debts incurred for her support unpaid. And under the contract, if George B. Bobbins did not provide the $1,500 per month, Lillian E. Bobbins, of course, would be relieved of her obligation under the agreement to pay her debts, and George B. Bobbins could be held liable for her support and maintenance.

The portion of the agreement which states, “it is the intention of the parties hereto mutually to release and waive all benefit of the laws of the State of Illinois relating to husband and wife, dower and homestead” concludes that same is “forever to bar each other respectively from any action to recover any interest that either may now have, or hereafter during the lifetime or at the death of either of the parties hereto may acquire, in the property, both real and personal, of the other.” There is not one word in this paragraph about any release of support, and in our opinion the release referred to was a mutual release of property rights with no consideration whatsoever given to the question of a release of support. The reason for the making of the agreement is stated in its preamble to provide support for the wife, and if it had been the intention of the parties that a release of support were intended, it would certainly have been set up in appropriate language. Also, if this provision had been intended to operate as a release by Lillian E. Bobbins of her future support and maintenance, it is peculiar that such release by said Lillian E. Bobbins should have been placed in a paragraph which' refers to mutual releases as to dower, inheritance, etc. If this wording should be construed as a release of future support hy said Lillian E. Bobbins, it would have to be taken as a release by George B. Bobbins, of any future support of him by Lillian E. Bobbins and certainly there is no evidence of any such intention manifested in the agreement. Also, the agreement cannot be construed to be a release of all future support of the wife under this agreement when Robbins was directly agreeing to support his wife by a payment of $1,500 per month, and furnishing security for such payment. So that any release (if intended) would have had to take the form of a provision in the contract to the effect that George B. Robbins would not be liable for the support of his wife beyond the sum of $1,500 per month. Such a provision would have had to take a much different form than be included in a mutual release of the parties releasing and waiving “all benefit of the laws of the State of Illinois relating to husband and wife.” The provision is too vague and indefinite (when read in the connection in which it is placed in the agreement) to hold that the wife intended by such language to waive future support. In the case of Edwards v. Edwards, 267 Ill. 111, the contract between husband and wife provided that the wife for and in consideration of the release by her husband of his interest in her property, “releases, relinquishes, quit-claims, sells, assigns and conveys all her rights, title and interest which said second party, as the wife of said first party, under the laws of the State of Illinois, may have acquired or which she may hereafter acquire during the lifetime of said first party or at his death, by reason of the said marriage that now subsists between said parties hereto, in and to all the property, both personal and real, which now is or hereafter during the lifetime or at the death of said first party may be owned by said first party.” The court held the contract perfectly proper and the release good in law. We are of the opinion that the language relied on by plaintiff as above set forth was not intended as a release of support by the wife.

The agreement provided for the support payments of $1,500 per month to continue after the death of George B. Robbins, and he in the agreement bound his executors, administrators and assigns to continue to pay said monthly sum of $1,500 per month to said Lillian E. Bobbins until the time of her death. This provision shows that the purpose of the contract is correctly set forth in the preamble as being to provide for the support of Lillian E. Bobbins. If the contract was made for such purpose, it would not have been made in contemplation of a release of the legal obligation on the part of George B. Bobbins to support his then wife. Contracts between husband and wife, which have been declared invalid by our courts, contained a release of the legal obligation of the husband to support the wife and, in practically every instance, a lump sum payment or a conveyance of a piece of property was made at the time of the making of the agreement. In this case there was no lump sum payment or conveyance, but a direct obligation to pay $1,500 each month during the lifetime of the wife even after the death of the husband.

To hold the agreement invalid would deprive Helen Bobbins Conroy of her rights (if any) under the agreement, to which she might be entitled at the time of the death of Lillian E. Bobbins.

We, therefore, hold that said agreement does not provide for .the release of the legal obligation of George B. Bobbins to support his wife, and that same is not void for that reason.

The next contention of plaintiff is that the agreement is void because its purpose and effect was to stimulate a divorce. There is no reference in the agreement to a divorce or separate maintenance proceeding, and the fact that 18 months after the agreement was signed Lillian E. Bobbins instituted divorce proceedings cannot in any way affect the construction of the contract. In the case of Shankland v. Shankland, 301 Ill. 524, the court said (p. 533):

“It will thus be seen that there are respectable authorities which hold that such a contract as the one entered into in this case is not necessarily void because it is entered into prior to and pending divorce proceedings. Where it is apparent that such a contract is entered into for the purpose of stimulating'or inducing one party or the other to institute divorce proceedings, or that the same is for the purpose of purchasing a decree of separation, or amounts to collusion between the parties to secure a divorce, such a contract ought to be, and is, deemed contrary to public policy and void. As there is no indication in this case that any such fraud or collusion was practiced or intended, we are disposed to hold that the contract in question is a valid and binding contract.”

In the case of Morrissey v. Morrissey, 299 Ill. App. 173, the court held that the defense of illegality was good on its face but said (p. 184):

“When this case goes back to the trial court it may be that in a reply plaintiff may be able to set up facts which will constitute a complete answer to the defense now presented. Whether or not the agreement was in fact entered into for the purpose of stimulating a divorce will depend on facts and circumstances introduced on a trial of the case.”

It does not appear on the face of the agreement that the agreement was entered into for the purpose of stimulating a divorce and it, therefore, does not appear on the face of the proceedings sought to be reversed that the agreement was made for the purpose of stimulating a divorce. If that question of fact was tried by the court which entered the decree of July 14, 1939, such question of fact cannot be reviewed in these proceedings. None of the requisites set forth in the Shanklcmd case above cited herein appear. We, therefore, hold that said agreement was not made for the purpose of stimulating a divorce, and is not contrary to public policy for that reason. We have considered the contention of plaintiff that the agreement of July 1, 1920, contains no words conveying title to the securities deposited with the trustee, and are satisfied that delivery, of the securities to the trustee, endorsed in blank, divested George B. Bobbins of all title thereto and vested the title to said securities in the trustee subject to the terms of the agreement. The agreement created a trust and not a bailment, and said agreement did not terminate upon the death of said George B. Bobbins.

We are led to this conclusion for the following reasons :

1. George B. Bobbins indorsed the securities in blank and delivered same to the trustee under the terms of the agreement. This amounted to a delivery and passing of title for the purposes of the trust. •

2. -George B. Bobbins during his lifetime acquiesced in the position that title to said securities had passed to the trustee, and in his will set forth that he had. made the 1920 agreement and provided therein for Lillian E. Bobbins and Helen Bobbins Conroy.

3. The trustee had such title as was necessary to carry out the terms of the trust, and the carrying out of the terms of -the trust made it necessary that title pass to the trustee. (Starr v. Moulton, 97 Ill. 525; Cherry v. Greene, 115 Ill. 591; Marsh v. Reed, 184 Ill. 263.) We are of the opinion that the agreement was in its nature a trust, and that the securities were delivered under the terms of the trust to the trustee. No question of delivery or testamentary disposition can thus arise under the terms of the agreement.

Holding as we do, that the agreement constituted a trust and not a bailment, necessarily decides the contention of plaintiff, that the agreement was testamentary in form, adversely to plaintiff’s contention.

The interest of Lillian E. Bobbins and the other beneficiaries took effect when the contract of 1920 was executed and the securities delivered to the trustee. The deposited securities became impressed with a trust which was irrevocable, and the trust was irrevocable during the lifetime of George B. Bobbins. The beneficiaries of the trust having acquired their interest during the lifetime of George B. Bobbins, the agreement does not infringe the requirements of the Statute of Wills. (Williams v. Evans, 154 Ill. 98; Patterson v. McClenathan, 296 Ill. 475.)

We are, therefore, of the opinion that the construction placed by the decree of July 14,1939, was correct. It follows that the chancellor did not err in this proceeding in holding that said decree of July 14, 1939, should not be vacated and set aside. The decree of the chancellor was correct and is affirmed.

Affirmed'.

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


source: Caselaw Access Project

author: Mr. Presiding Justice Sullivan

license: Public Domain

text:
    Arthur Greene, Executor of Last Will and Testament of Meyer Frank, Deceased, Appellee, v. Jennie Frank, Individually and as Widow of Meyer Frank, Deceased, et al., Appellees. Hannah Dembo and Rachel Rubinovitch, Appellants.
    Gen. No. 42,820.

      Opinion filed December 19, 1944.
    Released for publication January 4, 1945.
    William W. Barron, Leon L. Drolet and Arthur F. Manning, all of Chicago, for appellants.
    Robert L. Huttner, of Chicago, for certain appellee.
    Meyer Goldman, of Chicago, for certain other appellees.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

Meyer Frank died testate March 5, 1942. His will, which was executed by him July 8, 1941, was admitted to probate. Arthur Greene, son-in-law of the testator, was named executor of his will, letters testamentary were issued to him as executor on April 23, 1942 and he qualified and acted as such. The testator’s estate consisted entirely of personal property of the gross value of $99,414.75. His will provided for 15 bequests, 14 of which were to members of his immediate family and close relatives. His widow, Jennie Frank, was made sole residuary legatee. The surviving heirs-at-law and next of kin of the testator were his widow, Jennie Frank, and his children, William B. Frank, Blanche Greene and Gladys Rosenblum. He also left surviving him two sisters, Hannah Dembo and Rachel Rubinovitch, who were between 76 and 80 years old and lived in Latvia and Lithuania respectively. During his lifetime the decedent provided for. his sisters from time to time. He made his last remittances of moneys to them during June 1940. Thereafter he neither made nor attempted to make any remittances to them because he had been informed that there would be no likelihood that any .money sent to his sisters would reach them. On July 10, 1940 the President of the United States issued an executive order prohibiting the payment of money or delivery of property to nationals of Latvia and Lithuania except under license of the secretary of the treasury.

On August 6, 1941 a general order was entered by the probate court, which, after taking judicial notice of certain applicable Federal statutes, executive orders of the President of the United States and regulations issued pursuant to such executive orders and reciting that “payments of money or delivery of property under the jurisdiction of this court cannot now be made to nationals” of numerous European countries, including Latvia and Lithuania, directed that executors and others subject to the jurisdiction of that court having in their possession money or property belonging to a national of any of said countries as legatee or otherwise, file an appropriate petition to the end that such money or property be deposited with the county treasurer subject to the further order of the court.

Paragraph Seventh of the will of Meyer Frank provides :

“I hereby give and bequeath unto my beloved sister, Hannah Dembo, the sum of Fifteen Hundred Dollars ($1,500.00), and to my beloved sister, Rachel Rubinovitch, the sum of Fifteen Hundred Dollars ($1,500.00). If my said sisters, or eithep of them, shall die before me, or if my Executor shall be unable to pay said legacies to my sisters, or either of them, on account of prevailing war conditions in Europe or for any other cause, then such legacy or legacies shall lapse and fall into and become a part of my residuary estate.”

On July 6, 1942 the President of the United States issued an order establishing the office of alien property custodian and in compliance with regulations issued by said alien property custodian the executor filed with him a report setting forth the names and last known places of residence of Hannah Dembo and Rachel Rubinovitch and the nature of their interests under, the will and in the estate of the testator. The alien property custodian claims no interest in the estate and is not a party to this litigation but he designated attorneys to represent the interests of Hannah Dembo and Rachel Rubinovitch under the will of the decedent. Said attorneys filed the appearances of Hannah Dembo and Rachel Rubinovitch and themselves in the probate court and filed a petition therein praying that pursuant to the general order of that court heretofore referred to the executor be directed to deposit with the county treasurer the legacies of $1,500 each bequeathed to Hannah Dembo and Rachel Rubinovitch under Paragraph Seventh of the will. The executor advised the probate court that he was going to file a complaint for the construction of Meyer Frank’s will and the petition of Hannah Dembo and Rachel Rubinovitch was continued generally.

The administration of the testator’s estate having been completed except for the payment of the legacies provided for in Paragraph Seventh of the will, the executor filed his complaint on March 3, 1943 for the construction of the will and. particularly Paragraph Seventh thereof, alleging therein the matters herein-before set forth and that ‘‘during the ten months’ period fixed by law for the probate of the estate of said deceased in the probate court of Cook county, Illinois, the plaintiff has been and is now unable to pay to said legatees, or either of them, the legacies of Fifteen Hundred Dollars ($1,500.00) each, bequeathed to said legatees under Paragraph Seventh of said will of said deceased, on account of prevailing war conditions in Europe, or for other cause.” Hannah Dembo, Eachel Eubinovitch and the widow and children of the testator were named in the complaint as defendants and answers were filed by or on behalf of all of said defendants. It is admitted that not only was the executor unable to pay the legacies to the testator’s sisters but that it was impossible for him to do so because of prevailing war conditions in Europe.

The trial court entered a decree which, after finding that “during the ten-months’ period fixed by law for the probate of the estate of the decedent the executor has been and is now unable to pay the legacies of $1,500 each to Hannah Dembo and Eachel Buibinovitch or either of them under Paragraph Seventh of the will and that during said period the proceeds of said legacies were not received by said Hannah Dembo and Eachel Eubinovitch or either of them on account of prevailing war conditions in Europe or for any other cause,” adjudged that “by reason thereof and pursuant to the provisions and within the meaning of Paragraph Seventh of said will said legacies and each of them lapsed and fell into and became a part of the residuary estate of the testator” and directed the executor “to pay the sum of $3,000, representing the aggregate amount of said legacies, less the costs taxed by the court in this proceeding, to the defendant Jennie Frank, the widow and sole residuary legatee of the testator under Paragraph Fourteenth of said will.”

This appeal is prosecuted on behalf of Hannah Dembo and Eachel Eubinovitch (hereinafter for convenience sometimes referred to as appellants) to reverse the decree and it is contended that the $1,500 bequeathed to each of them, under Paragraph Seventh of the will “was vested in them” and should have been deposited by the executor with the county treasurer pursuant to the general order of the probate court and that a deposit of the amount of the legacies with the county treasurer in conformity with said general order would constitute payment to them as legatees.

In bequeathing the legacies in question to his sisters, the testator imposed two conditions which, if not fulfilled, would cause them to lapse and become a part of the residuary estate. The first condition was that the legacy to either sister “shall lapse” if she “shall die” before the decedent. • Since the decree found that at the time of its entry both sisters were living, the first condition must be held to have been fulfilled. Therefore we are solely concerned with the proper construction to be given to the second condition, which provides that “if my executor shall be unable to pay said legacies to my sisters, or either of them, on account of prevailing war conditions in Europe or for any other cause, then such legacy or legacies shall lapse and fall into and become a part of my residuary estate. ’ ’

In construing wills the fundamental rule is to ascertain and give effect to the true intention of the testator and in ascertaining his intention the words of his will are to be read in the light of the circumstances under which he executed it.

The general order of the probate court, according to its terms could apply here only if the legacies in question vested in the testator’s sisters. Therefore the paramount question presented is whether under Paragraph Seventh of the will the legacies bequeathed to the sisters of the testator vested in them, or whether, within the meaning of the language therein expressed, said legacies lapsed and became a part of the residuary estate by reason of the inability of the executor on account of prevailing war conditions in Europe to pay same to the decedent’s sisters or either of them during the period fixed by law for the probate of the testator’s estate.

As heretofore shown, the decedent provided for his aged sisters from time to time until June 1940, when he ascertained that there was. no likelihood that any more money sent by him would reach them. The executive order prohibiting the payment of money to nationals of Latvia and Lithuania was issued July 10, 1940. When Meyer Frank executed his will on July 8, 1941, he knew then that no money could be remitted to his sisters and he also knew then that it had been impossible for more than a year before that time to send them money. When he made his will, he must have contemplated that if war conditions prevailed at the time of his death and that if such war conditions continued to prevail for any considerable period after his death, there would be no possibility of the executor paying the legacies to his sisters or of them receiving them. It was unquestionably for that very reason that he made the legacies contingent upon the ability of the executor to pay them if the war in Europe continued for a long period of time after his death. The executor was unable to pay them because of prevailing war conditions in Europe within a reasonable time after the testator’s death and we are of opinion that the chancellor properly held that the ten months’ period fixed by law for the administration of testate estates was a reasonable time.

While it is true that the testator intended and undoubtedly cherished the hope that his sisters would receive the benefit of the legacies, it is also true that when he imposed the conditions upon which they would lapse, he realized that it might be impossible because of the war for the executor to pay the legacies so that they would actually reach his sisters. In that event it was clearly his intention that the amount of the legacies would he paid to his widow as sole residuary legatee.

If the legacies in question were unconditional, they would have vested in the appellants upon the testator’s death and would be subject to deposit with the county treasurer under the terms of the general order of the probate court but, conditioned as they were and one of the conditions precedent not having been fulfilled, they must he held to have lapsed and become part of the residuary estate.

It is suggested that payment of the legacies to the county treasurer would constitute payment to the testator’s sisters. As we have already said, it was unquestionably the intention of the testator that if the legacies could not be actually paid to his sisters, the aggregate amount thereof should be paid to, his widow. It is clear that he did not intend that the money represented by these legacies should be paid to anyone other than his sisters or widow. A deposit of the amount of the legacies with the county treasurer would preclude the testator’s widow from ever receiving same and in all probability his sisters would never receive any benefit from the legacies. Hannah Dembo and Rachel Rubinovitch were about 80 years old, had no life expectancy and had been already subjected to the rigors of war for a number of years prior to the entry of the decree on April 7, 1943, and, while it was found therein that they were living at that time, it may well he that they have since died or will have died before the war is over in Europe and orderly governments have been re-established in Latvia and Lithuania. The testator had the right to dispose of his property as he saw fit so long as the provisions of his will violate no rule of law and are not against public policy. It is certain that he did not contemplate a situation whereby it might become possible that that portion of his property represented by these legacies would be distributed among the heirs-at-law or next of Mn of Hannah Dembo and Rachel Rubinovitch in Latvia, Lithuania or elsewhere. We think that it would frustrate the intention of the testator as manifested in his will if the aggregate amount of these lapsed legacies was not paid to his widow as sole residuary legatee.

In our opinion the only reasonable construction that Paragraph Seventh of the will is susceptible of, considered with all other pertinent provisions of the will and the circumstances under which it was executed, is that the testator clearly intended that if the executor was unable to pay the legacies to his sisters, Hannah Dembo and Rachel Rubinovitch, and they were unable to receive them because of prevailing war conditions, in Europe, they lapsed and were payable to Jennie Frank, decedent’s widow arid the sole residuary legatee. We are impelled to hold that the general order of the probate court has no application to these lapsed legacies.

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

Decree affirmed.

Friend and Scanlan, JJ., concur.


text:
    Catherine Fulton, Appellee, v. Milton S. Yondorf, Individually, Appellant.
    Gen. No. 43,081.

      Opinion filed December 19, 1944.
    Released for publication January 4, 1945.
    Burt A. Crowe and Carl E. Abrahamson, both of Chicago, for appellant.
    Ben M. Smith and Krohn & MacDonald, all of Chicago, for appellee; Stuart B. Krohn and Ian P, MacDonald, both of Chicago, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

This action was brought against Milton S. Yondorf, as trustee and individually, by plaintiff, Catherine Fulton, to recover damages for personal injuries alleged to have been sustained by her on July 26,1939, when she slipped or tripped while walking down the stairs in the building located at 1137 Pratt Boulevard, Chicago, Illinois, in which she was a tenant. Milton S. Yondorf admitted in his answer that he operated, managed and controlled the premises in question as trustee only and not individually. The case was tried before the court and a jury and at the close of all the evidence plaintiff’s counsel voluntarily and on his own motion dismissed the suit as against Milton S. Yondorf, individually, and the trial proceeded against Milton S. Yondorf, as trustee. The jury returned a verdict finding Yondorf, as trustee, guilty.and assessed plaintiff’s damages at $10,000. Defendant Yondorf, as trustee, filed a motion for judgment in his favor notwithstanding the verdict. While the motion of Yondorf, as trustee, for judgment notwithstanding the verdict was pending before the trial court, plaintiff’s counsel made a motion orally “for leave to withdraw and have vacated, her motion dismissing the said Milton S. Yondorf, individually, defendant, at the end of all the evidence and reinstate the case as to him, individually. And moved the court to amend the verdict of the jury by striking out the words, ‘as trustee’ therein, and to enter judgment upon the verdict as against Milton S. Yondorf, individually.” After a hearing on the several motions the trial court entered an order granting ‘ ‘ plaintiff’s motion to vacate the order of dismissal as to Milton S. Yondorf, individually^ and to reinstate same as to said defendant, individually”; denied “plaintiff’s motion to strike out the words, ‘ as trustee.’ from the verdict of the jury, and to enter a judgment against the defendant, Milton S. Yondorf, individually, upon said verdict, as so amended”; granted “the motion of the defendant, Milton S. Yondorf, as trustee, for a judgment in his favor, as trustee, notwithstanding the verdict of the jury and against the plaintiff for costs”; and on its own motion granted “a new trial to the plaintiff as to the defendant, Milton S. Yondorf, individually.” Milton S. Yondorf, individually, appeals from that part of the final order “wherein the Court allowed the plaintiff to withdraw her motion dismissing said cause as to Milton S. Yondorf, individually, and reinstate said cause as to Milton S. Yondorf, individually,” and from that part of the order “wherein the Court on its own motion ordered that a new trial be had in said cause by the plaintiff against Milton S. Yondorf, individually.” Plaintiff has not perfected a cross-appeal from the judgment notwithstanding the verdict entered in favor of Milton S. Yondorf, as trustee.

Milton S. Yondorf, individually, will hereinafter be sometimes referred to as the defendant. His theory as stated in his brief is that “the plaintiff, by her deliberate and voluntary act entered a dismissal of her suit as against Milton S. Yondorf, individually, and having done so, the court completely lost jurisdiction of Yondorf as an individual and that plaintiff’s only recourse as against Yondorf, individually, was to begin his action against him anew; that the court was in error in "granting leave to the plaintiff to reinstate Milton S. Yondorf, individually and having done so, was necessarily in error in granting a new trial as to Yondorf, individually.”

Plaintiff’s theory is stated as follows: “1. Yondorf, Individual, was legally liable for the tortious conduct and acts of Yondorf, Trustee. 2. The jury, by their verdict, decided three ultimate facts, viz: (a) Yondorf, Trustee, was guilty of negligence in the operation of the building in question, (b) As the result of the negligence of Yondorf, Trustee, the plaintiff had sustained damages in the sum of $10,000.00. (c) The plaintiff was not guilty of contributory negligence. 3. The finding of these ultimate facts by the jury, entitled the plaintiff to a judgment against Yondorf, Individual, and, the court, having first vacated the order dismissing the case as to Yondorf, Individual, should have entered a judgment in favor of plaintiff and against Yondorf, Individual, in the sum o'f $10,000.00 upon the verdict of the jury. ’ ’

The paramount question presented for determination is whether, after plaintiff had voluntarily and deliberately dismissed the case as to Yondorf, individually, the trial court had any jurisdiction to vacate the order of dismissal and reinstate the case as to Yondorf, individually.

In deciding that he had the right to vacate the order of dismissal and reinstate the case as to Yondorf, individually, the trial judge rendered an opinion which contained the following statement as to this phase of the case:

“Plaintiff’s motion for leave to withdraw his dismissal as to the defendant in his individual capacity presents a more difficult, question. As against her right to do so counsel for defendant have cited Weisguth v. Supreme Tribe, 272 Ill. 541; Davis v. Robinson, 374 Ill. 553; and Thompson v. Otis, 285 Ill. App. 523. Counsel for plaintiff has cited the following case in support of her right to withdraw her dismissal. Watson v. Trinz, 274 Ill. App. 379.
“The Weisguth case was decided prior to the present Practice Act and involved the question of a voluntary nonsuit and the consequent dismissal of the case. The case of Davis v. Robinson, also involved the dismissal of a suit.
“The case of Thompson v. Otis, 285 Ill. App. 523, is of interest to the present problem. In that case a dismissal was entered upon plaintiff’s motion as to one of several defendants. Later it was sought to again bring him into the case as a new party defendant by service of a new summons. It was objected that inasmuch as he had once been voluntarily dismissed from the suit he could not now be made a new party thereto but that it would be necessary for the plaintiff to institute a new action against him. The Weisguth case was cited as authority against plaintiff’s right. The court in its opinion refers to the Weisguth case as being in point only where the dismissal is as to a sole or all defendants. They state that in the instant case the dismissal as to one of the parties was not a nonsuit of the case and that the case still was pending. In my opinion the- Thompson case is authority for the proposition that the Weisguth case and the case of Dali v. Robinson is not applicable to the case we are now considering. Of course it may be argued that counsel in the Thompson case considered it necessary to bring the dismissed defendant back in the ease by motion to make him a new party defendant under the act rather than a vacation of the order of dismissal.
“The case of Watson v. Trinz, 274 Ill. App. 379, is relied upon by the plaintiff. Of course the facts there involved are readily distinguishable from those here presented.”

The leading case in this state on the question under consideration is Weisguth v. Supreme Tribe of Ben Hur, 272 Ill. 541, where the court said at p. 543:

“In case of a voluntary non-suit upon motion of a plaintiff the court has no power to set aside the order of dismissal and re-instate the cause unless at the time the non-suit is taken leave is given the plaintiff to move to set it aside. (Barnes v. Barber, 1 Gilm. 401; Lombard v. Cheever, 3 id. 469.) The reaT son for this rule is apparent. If a plaintiff by his deliberate and voluntary act secures the dismissal of his suit he must be held to have anticipated the effect and necessary results of this action and should not be restored to the position and the rights which he voluntarily abandoned. Having taken a non-suit, his only recourse is to begin his action anew.”

(Davis v. Robinson, 374 Ill. 553 and Moist v. Jones, 323 Ill. App. 286 (Abst.) are to the same effect.)

The only case cited or discussed in plaintiff’s brief concerning the power of a trial court to reinstate a case as to a defendant who had been voluntarily dismissed therefrom is Watson v. Trinz, 274 Ill. App. 379, which the trial judge properly held was readily distinguishable from the instant case. There, one of several defendants was dismissed at the close of plaintiff’s case, but the dismissal was ordered on said defendant’s motion. A voluntary dismissal by plaintiff was not involved. There were elements of dishonesty and trickery on the part of the defense in that case, that are not present here, that fully warranted the vacation of the order of dismissal and the reinstatement of the case as to the defendant dismissed in the Watson case.

It will be noted from the foregoing opinion of the trial judge that he relied entirely upon the case of Thompson v. Otis, 285 Ill. App. 523, in reaching his conclusion that he had the power to vacate the order of dismissal and reinstate the case as to Yondorf, individually. Plaintiff in the Thompson case voluntarily dismissed the action as to Kleinschmidt, one of the three defendants, and no attempt was made therein by said plaintiff to vacate the order of dismissal or to reinstate Kleinschmidt as one of the original defendants. Thereafter, before the statute of limitations had run against plaintiff’s claim, an order was entered on his motion, making Kleinschmidt an additional party defendant and directing the issuance of summons to him. On the same day said order was entered plaintiff filed his second amended complaint naming as defendants Kleinschmidt and the other two original defendants. Summons was issued to Kleinschmidt as directed and was personally served .upon him. The question before the court in the Thompson case was not whether the trial court had power to vacate an order of dismissal and reinstate the case as to a defendant who had been voluntarily dismissed by plaintiff but whether the procedure followed by the plaintiff therein “in making Kleinschmidt an additional party defendant in the pending cause, in procuring summons to issue and having it personally served upon him and in filing his second amended complaint as to the two defendants who remained in the case, as well as to Kleinschmidt,” constituted or amounted in effect to the commencement of a new suit. In that case we did state that the rule enunciated in Weisguth v. Supreme Tribe of Ben Hur, supra, that “in case of a voluntary nonsuit upon motion of a plaintiff the court has no power to set aside the order of dismissal and reinstate the cause unless at the time the nonsuit is taken leave is given the plaintiff to move to set it aside” is only applicable where the voluntary nonsuit is taken by a plaintiff against the sole defendant or all the defendants in a case. We now think that this was an inaccurate statement of the rule and unnecessary to the result reached in the Thompson case, in which we held that the procedure followed therein was in effect the commencement of a new suit.

The common-law rule set forth in the Weisguth ease as to the legal effect of the voluntary dismissal of a case by a plaintiff has been followed without deviation and is still the law in this state; There is no provision in either the Civil Practice Act or the former Practice Act which either expressly or impliedly abrogates or modifies said rule. The reason for the rule as heretofore set forth in the Weisguth case, is that “if a plaintiff by his deliberate and voluntary act secures the dismissal of his suit he must be held to have anticipated the effect and necessary results of this action and should not be restored to the position and the rights which he voluntarily abandoned.” This reasoning is equally applicable to a plaintiff’s voluntary dismissal of a sole defendant, all of the defendants or one or more of several defendants in a case.

Plaintiff brought this action against Yondorf in two distinct capacities, individually and as trustee, and Yondorf must be considered to all intents and purposes in this suit as a separate defendant in each capacity. When plaintiff voluntarily dismissed the case as to Yondorf, individually, and failed to secure leave to vacate the order of dismissal at the time it was entered, she must be held to have deliberately abandoned her rights against him in that capacity.' After said dismissal her only recourse was to bring a new action against him individually, if the statute of limitations had not run against her claim.

Plaintiff contends that the trial court erred in refusing to allow her motion “to amend the verdict of the jury by striking out the words, ‘as trustee’ therein, and to enter judgment upon the verdict as against Milton S. Yondorf, individually.” There is no merit in this contention. When the verdict was rendered, Milton S. Yondorf, individually, was no longer a party to the suit and the court had no jurisdiction to bring him back into the case as a party defendant. It is quite obvious that the trial court did not err in denying plaintiff’s motion to amend the verdict and enter judgment thereon against Yondorf, individually.

Defendant included in his notice of appeal an appeal “from that part of the order aforesaid wherein the court on its own motion ordered that a new trial be had in said cause by the plaintiff against Milton S. Yondorf, individually.” Plaintiff urges that defendant has no right of appeal from the order of the trial court granting a new trial as to Yondorf, individually, but could only file a petition for leave to appeal from such order in accordance with the provisions of the Civil Practice Act and the rules of the Supreme Court and this court. The “new trial” that was granted on the court’s own motion was as to defendant Yondorf, individually, against whom there had been no trial and who was not a party to the suit when the verdict was rendered. This portion of the appeal is not concerned with the propriety of an order allowing a new trial of a case which had actually been tried against the defendant but it merely questions the jurisdiction of the trial court to order a new trial under the circumstances shown herein. In any event, the appeal from the order granting the new trial was merely incidental to and a part of the appeal from the order “granting plaintiff’s motion to vacate plaintiff’s voluntary dismissal of the suit as against Milton S. Yondorf, individually.” Since the trial court had no jurisdiction to vacate the order of dismissal as to Yondorf, individually, and reinstate the case as to him, it necessarily follows that it had no jurisdiction to order a new trial as to him, individually. Even though defendant’s appeal from the order granting a new trial were held to be improper and disregarded, still the order for a new trial would be of no avail to plaintiff, since there would be no case to retry without a defendant.

Both parties have presented motions, which have been reserved to hearing, to strike certain portions of each other’s brief. Inasmuch as we have considered and 'determined all the material questions presented by the briefs of plaintiff and defendant, said motions will be denied.

It is now conceded that Yondorf, as trustee, could not be held liable for plaintiff’s alleged injuries and it is apparent that the trial judge entered the orders appealed from in an endeavor to extricate plaintiff from the unfortunate predicament she was in after the verdict was rendered. The statute of limitations had run against her cause of action. She had- a verdict against Yondorf, as trustee, who could not be held liable in that capacity under the law, and she had voluntarily abandoned her case as to Yondorf, individually, against whom liability might be shown if he could have been brought back into the case in that capacity. However, as has been seen, the trial court had no jurisdiction to grant plaintiff’s motion to vacate her voluntary dismissal of the case as to Yondorf, individually.

We are impelled to hold that the trial court erroneously entered the order granting “plaintiff’s motion to vacate the order of dismissal as to Milton S. Yondorf, individually, and to reinstate same as to said defendant, individually” because it had no jurisdiction to enter said order and that the order granting “a new trial to the plaintiff as to the defendant, Milton S. Yondorf, individually” was also erroneously entered because of lack of jurisdiction „ of the trial court to enter same.

For the reasons stated herein the orders of the trial court granting “plaintiff’s motion to vacate the order of dismissal as to Milton S. Yondorf, individually, and to reinstate same as to said defendant, individually” and granting “a new trial to the plaintiff as to the defendant, Milton S. Yondorf, individually” are reversed.

Orders reversed.

Friend and Scanlan, JJ., concur.


author: Mr. Justice Friend

text:
    Joseph Oran, Minor, by Moe Oran, Father and Next Friend, Appellant, v. Kraft-Phenix Cheese Corporation, Appellee.
    Gen. No. 42,633.

      Opinion filed December 19, 1944.
    Released for publication January 4, 1945.
    Irving N. Stenn and Krohn & MacDonald, all of Chicago, for appellant; Stuart B. Krohn and Ian P. MacDonald, both of Chicago, of counsel.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellee; William H. Symmes, David Jacker and John M. O’Connor, Jr., all of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

While riding on a bicycle along Pulaski road in Chicago, plaintiff, a minor, was crowded against an automobile parked along the curb by a truck of the Kraft-Phenix Cheese Corporation and severely injured. He brought suit against the cheese company, the driver of its truck, Walter T. Peterson, and Agnes Geiger, the owner of the parked car, who was dismissed from the case before trial. Peterson was dismissed at the close of all the evidence and before the cause was submitted to the jury. At the close of all the evidence the remaining defendant moved for a peremptory instruction, upon which the court reserved its ruling. The cause was then submitted to the jury, which returned a verdict in plaintiff’s favor in the sum of $1,200. Thereafter the court denied defendant’s written motion for a new trial, granted its motion for a judgment notwithstanding the verdict, and entered judgment in favor of defendant, from which plaintiff appeals.

The accident occurred about 5:30 in the afternoon on December 13, 1939, after darkness had set in. Plaintiff was then 15 years of age, lacking one day of attaining his 16th birthday, and a student at Eoosevelt high school. He was employed after school and on Saturdays and Sundays in a pharmacy called “Lessing Prescriptions,” doing clerical work and delivering packages. On the day of the accident he had to deliver a package to a customer on North Kolmar avenue and for that purpose used a bicycle which had a large red reflector, two or three inches in diameter, on the back fender. The package he was delivering was a, large bundle about 18 inches long and 12 inches high, but weighing only about three pounds, containing two boxes of Kotex, a box of Kleenex, some cough medicine and tablets. There was no basket on the bicycle, and plaintiff held the package in his left hand and steered the bicycle with his right hand. He left the store at 3627 West Lawrence avenue, rode west on that street to Pulaski road and north along the latter highway, keeping as close to the right hand curb as possible and swinging out whenever necessary to pass parked cars. There are street car tracks on Pulaski road, with a granite-block pavement approximately 15 feet from the right or northbound rail to the curb. At the time of the occurrence plaintiff was traveling in a northerly direction, about five to six miles an hour. He states that he first became aware of the vehicle that ultimately crowded him against a parked automobile when he noticed the noise behind him of an approaching truck which was passing a northbound street car to the right and going about 30 miles an hour. As the truck passed the car it swung close to him and caused him to put up his left hand to protect himself. He wore a heavy overcoat with a strap on the left sleeve, two or three inches wide, extending around the sleeve. As the truck swung around to the right of the street car plaintiff was riding about two feet from the curb, and according to his testimony, in putting up his left hand to protect himself from the crowding truck Ms arm slid along the smooth side of the vehicle and the sleeve strap caught on a protruding door handle close to the center of the truck, consisting of a metal bar with a point turned toward1 the front abóut 4% feet from the ground. Because of the speed of the truck and the fact that his sleeve was caught in the handle, his arm was wrenched and pulled forward so that he could not disengage it or take his right hand off the handlebar of the bicycle. The truck pulled the bicycle along in this manner for over a block until it was crowded between the truck and Agnes Geiger’s car parked at the curb. Plaintiff’s bicycle had a coaster brake, and after he was caught and pulled forward by the truck he stood on the pedals with his left hand holding the package, his arm caught in the truck handle so that he could not free himself. As the bicycle struck the Geiger car it flew in the air and plaintiff was thrown to the ground, sustaining a fractured clavicle, a fracture of the costal arch of the chest, a severe cut on his head and various bruises. He was hospitalized for 11 days, during which splints were applied and left in position for about six weeks, and thereafter for several months he suffered considerable pain. His medical and hospital bills totaled $275.95.

Defendant insists that plaintiff was “hooking a ride” on the truck immediately preceding the accident to avoid the physical exertion of pedaling his bicycle, and to sustain its theory and in an endeavor to rebut plaintiff’s testimony it produced Bussell L. Cox as a witness. Cox was driving his automobile north on Pulaski road between Lawrence and Foster avenues, with the Kraft truck and a street car ahead of him. He stated that plaintiff had been holding on to the truck from Lawrence avenue. Somewhere north of that street “the truck made a bid to pass the street car. At that time this boy on the bicycle was hooking a .ride on the right side of the Kraft truck. It all happened very quickly. As the truck straightened out there was a parked automobile at the curb, in between the automobile parked at the curb was sufficient clearance for thi*s truck to clear through. The boy hanging on to the truck did not see this in time. He let go of the truck and struck a parked car with his bicycle, his bicycle and him on it. It threw him rather severely and at the time I came to pick him, up he was badly hurt and he was 35 to 40 feet ahead of the parked car and off his bicycle, thrown to the ground. I saw there were some scattered, broken packages around the bicycle where the boy was.” Cox admitted that he did not see plaintiff at any time until he (Cox) was within 50 feet of the truck. On cross-examination he testified as follows: “Q. You could not see whether he had hold' of the truck, holding on with his hand, from the distance where you were in the night time, or whether his sleeve was caught on something on the truck? A. No, I couldn’t see that. Q. You couldn’t see that? A. No. Q. And when this thing occurred, or what you are telling about, there was an automobile between you and the truck too, wasn’t there? A. Correct.”

The only other witness who saw any part of the occurrence was Erwin Feigenbaum, who states that he was operating the northbound street car about 20 miles an hour along Pulaski road between Argyle and Foster avenues when defendant’s truck passed to his right. When the truck had proceeded to about 15 feet in front of the car Feigenbaum heard a noise, looked and saw a bicycle “up in the air.” The truck kept on going to Foster avenue, “where I overtook him and had a conversation with the driver.”

. Peterson, the driver of the truck, admitted on his own direct examination that while he was passing the northbound street car he heard a noise of some kind which he attributed to running over a piece of metal, tin or iron, and “I first thought maybe I had a puncture or something, but nothing happened, the truck continued on and I went on to Foster and I began thinking I should examine the truck.” It was at Foster avenue that Feigenbaum talked to Peterson and told him that his truck had hit a boy on a bicycle.

Defendant .seeks to justify the judgment in its favor notwithstanding the verdict for reasons which we shall hereinafter discuss, but it contends that if the trial court erred in granting the judgment it nevertheless should have allowed defendant’s motion for a new trial in pursuance of its written motion under rule 22 of the Supreme Court, wherein defendant set forth some 16 separate grounds for a new trial. The principal ground urged is that the verdict of the jury was against the manifest weight of the evidence. As heretofore stated, defendant predicated part of its defense upon the theory that plaintiff was “hooking a ride.” This theory, supported only by Cox’s testimony, was in direct conflict with the evidence adduced by plaintiff, supported by the probability of the truth of the latter’s statement that he was carrying the bundle in his left hand, steering the bicycle with his right and would therefore have been unable to hold on to the handle of the truck in an endeavor to “steal a ride,” as defendant contends. In any event, since the evidence was conflicting it was the duty of the jury to determine the facts, and we would not be justified in substituting our judgment for its. There is sufficient evidence to support the verdict.

Defendant’s principal contention, that the verdict was contrary to the manifest weight of the evidence, is lodged in the argument that Peterson, defendant’s driver, did not see plaintiff and therefore was not negligent. However, it clearly appears from the record that defendant’s truck overtook plaintiff as he was riding on his bicycle, which had a red reflector on the rear fender, and under the well-established rule of law a person is charged with the duty of looking and seeing things that are obviously visible. Moreover, it appears from Peterson’s own testimony that he continued on to Foster avenue, turned the corner and was examining his truck to see whether any damage had been done to it when Feigenbaum apprised him of the accident. He evidently suspected that he had' struck something when he heard the sound “like I was going over a piece of tin or metal,” and the jury may well have concluded that he saw plaintiff on his bicycle; that he knew defendant’s truck “ran into and struck and collided with plaintiff,” as charged in the complaint; but, nevertheless, continued on his way until he turned the corner at Foster avenue to examine any possible damage to his truck.

In support of its contention that the court should have granted defendant a new trial it is further urged that the dismissal of Peterson as a codefendant was highly prejudicial and constituted reversible error, because of the prior admission into evidence, over defendant’s objection, of Feigenbaum’s conversation with Peterson, in which Feigenbaum told him that he had hit a boy on a bicycle, and Peterson’s purported reply that he thought he had run over a piece of tin but did not stop and had no intention, of going back even after he came to a stop at Foster avenue; that although such evidence would have been admissible against Peterson, it was in any event not competent as to the cheese company bcause it was not part of the res gestae; and counsel say that the dismissal of Peterson just before the case was argued, left the prejudicial testimony standing solely against Peterson’s employer, the only remaining defendant, and tended to arouse the jury’s passion against it. We find, however, that the cheese company, when making its defense, had put Peterson on the stand and elicited from him on direct examination the same conversation which had previously been brought" out during plaintiff’s case in chief. He then repeated the testimony in substance on cross-examination by plaintiff’s attorneys. Having voluntarily adduced this evidence as part of the record, defendant is precluded from urging it as error on appeal.

With respect to the entry of judgment for defendant, notwithstanding the verdict, the record discloses the following state of the pleadings. Defendant’s answer set up the affirmative defense that plaintiff and his employer, and defendant and its employee were all subject to and operating under the Workmen’s Compensation Act of Illinois (Ill. Rev. Stat. 1943, ch. 48, par. 138 et seq, [Jones Ill. Stats. Ann. 143.17 et seg.]), and that by section 29 of that act any cause of action which plaintiff might have had because of the accident was transferred to his employer. To that answer plaintiff filed a reply in which he stated that he was a minor illegally employed, and therefore had a right to bring an action at law. He did not, however, deny that all the parties were operating under the Act. Thereafter, without notice to plaintiff and without leave of court, defendant filed a reply stating that plaintiff did not, within six months of the date of the accident, file with the Industrial Commission of Illinois, a rejection of his rights to the benefits under the Compensation Act, as provided in section 6 thereof as follows: “No common law or statutory right to recover damages for injury or death sustained by any employe while engaged in the line of his duty as such employe, other than the compensation herein provided, shall be available to any employe who is covered by the provisions of this act, .... Provided, further, that any illegally employed minor or his legal representatives shall, except as hereinafter provided, have the right, within six months after the time of injury or death, to file with the commission a rejection of his right to the benefits under this Act, in which case such illegally employed minor or his legal representatives shall have the right to pursue his or their common law or statutory remedies to recover damages for such injury or death, . . . . ” After the court had sustained defendant’s motion for judgment notwithstanding the verdict, plaintiff sought to amend his reply to the answer so as to deny that the plaintiff and his employer were bound by the Compensation Act, but the court refused plaintiff’s request. The issues had then been settled by the pleadings for about three weeks when plaintiff sought for the first time to inject into the case the issue of fact whether all the parties came within the Compensation Act.

With respect to these various pleadings we hold that plaintiff, by failing to deny that the parties were under the -Act, admitted that to be the fact (Practice Act, sec. 40, subsec. 2, Ill. Rev. Stat. 1943, ch. 110, par. 164 (2) [Jones Ill. Stats. Ann. 104.040, subsec. (2)]). This being admitted, there was consequently no necessity to offer any proof on the subject (Pierce v. Reeve, 306 Ill. App. 400; City of Springfield v. Kable, 306 Ill. App. 616). We also hold that the granting or refusing of leave to amend is within the jurisdiction of the trial court, and a judgment will not be reversed for a refusal to allow an amendment unless there has been a manifest abuse of discretion (County of Winnebago v. Cannell, 376 Ill. 277; McGlaughlin v. Pickerel, 381 Ill. 574). This is especially true after the evidence has been closed, as it was in the case at bar. McGlaughlin v. Pickerel, supra; Stewart v. McIntosh, 316 Ill. App. 212; Whitten v. John Hancock Mut. Life Ins. Co. of Boston, Mass., 281 Ill. App. 539.

There remains for consideration the principal and more difficult question whether the court properly entered judgment notwithstanding the verdict because plaintiff, an illegally employed minor, failed within six months after the injury to file with the commission a rejection of his right to the benefits of the Act as a condition precedent to the exercise of his common-law right to recover damages for his injuries. Cases cited by the respective parties, with one exception (Kijow ski v. Times Publishing Corp., 298 Ill. App. 236, aff’d upon review by the Supreme Court in 372 Ill. 311), involve the public policy of this state as expressed by the courts in safeguarding the rights of minors under general statutes as distinguished from specific legislation. In Walgreen Co. v. Industrial Commission, 323 Ill. 194, decided prior to the enactment of section 6, the question arose as to whether a minor was bound by the statutory provision of section 24 of the Workmen’s Compensation Act which prescribes that no proceedings for compensation under the act shall be maintained unless made within six months after the accident. It was there pointed out that although section 24 is general in its terms, nevertheless such statutes are frequently construed to contain exceptions when considered in connection with well known rules of law, upon the theory that their enactment was effected with full recognition of rules of law which had become well known and established; and in deciding that the time limitations provided by section 24 do not run against the rights of a minor so long as he is without a guardian, the court made the following observation: “From time immemorial the status of a minor of tender years has been recognized in law to be different from that of one of more mature years, and in McDonald v. City of Spring Valley, 285 Ill. 52 (a suit brought by a minor by her next friend in trespass on the case against the city of Spring Valley), it was held that the statute requiring written notice six months after an injury by any person intending to sue a city did not apply to a child seven years old, who was physically and mentally incompetent to give such notice, and that the act, though general in its terms and containing no specific exception, must be construed as having been passed with due regard to the established rules of law for the protection of incompetent persons. In Maskaliunas v. Chicago and Western Indiana Railroad Co., 318 Ill. 142 (a suit for personal injuries), it was held that the statute making it a misdemeanor to climb upon a railroad car without permission had no application to the appellee, who was under ten years of age, and that, notwithstanding the statute was general in its terms, it must be construed in connection with a statute declaring a child under the age of ten doli incapax. From these decisions the conclusion must be drawn that it is the public policy of this State that courts should guard carefully the rights of minors and that a minor should not be precluded from enforcing his rights unless clearly debarred from so doing by some statute or constitutional provision.”

In McDonald v. City of Spring Valley, 285 Ill. 52, the court held that the statute requiring written notice within six months from the date of injury before suit against a municipality for personal injury (Cities and Villages Act, Ill. Rev. Stat. 1943, ch. 24, par. 1-11 et seq. [Jones Ill. Stats. Ann. 21.1121 et seq.]) does not apply to a minor, but only to those who are mentally and physically capable of comprehending and complying with its terms. The court said it was aware of the fact that in a number of other jurisdictions a strict construction has been given to similar statutes and that it has been held in those states that it is a matter for the legislature to determine whether there should be any exceptions to such legislation; “but in the State of New York,” said the court, “where there is a similar statute, the New York Court of Appeals held that where an infant five years of age was injured by the alleged negligence of a village, its right of action was not barred because it did not file the notice required within the time prescribed by the statute, under the rule that the law does not seek to compel one to do that which he cannot possibly perform, and that the failure of a father or mother to file the notice is not chargeable to the infant. (Murphy v. Village of Ft. Edward, 213 N. Y. 397.) In the State of Washington a similar statute has been construed' not to include cases where the person injured was rendered physically and mentally incapable of complying with the statute in the time required, by reason of the extent of his injuries. (Born v. City of Spokane, 27 Wash. 719; Ehrhardt v. City of Seattle, 33 id. 664.) ” In stating its conclusions in the McDonald case the Supreme Court said that “It would be unreasonable to so construe this statute as to make it appear that the legislature intended in these few cases to require that to be done which is utterly impossible of performance. It cannot be controverted that a minor is incapable of appointing an agent or an attorney, and it cannot be successfully contended that the statute can be complied with by the filing of the required notice by the father, mother or some friend of the child as next friend. While the parent of a minor is its natural guardian he cannot be said to be the agent or attorney for the child. A child Avith a meritorious cause of action but incapable of initiating any proceeding for its enforcement will not be left to the Avhim or mércy of some self-constituted next friend to enforce its rights. ’ ’

We are not unmindful of the fact that the foregoing decisions deal with statutes that are general in their terms; nevertheless they express the public policy of the state and cannot be disregarded in construing section 6 which is specific in its terms. So far as we have been able to ascertain, Kijowski v. Times Publishing Corp., 298 Ill. App. 236; is the only instance in which the right of a minor to institute suit by his father and next friend because of the provision of section 6, has received the consideration of any reviewing court in this state. The court there said that “The question which concerns us is whether the plaintiff is barred by reason of failure to file Avith the commission a rejection of his rights to the benefits under this act, in case it appears from the record that he was an illegally employed minor. The thought that seems to be foremost in the minds of the court is whether or not the plaintiff is bound by the provisions of this act. The defendant’s position is that the plaintiff is subject to the provisions of the compensation law, and in order to maintain the instant suit it was necessary for him to file a rejection, as required by the statute. The plaintiff, however, in order to be bound by its provisions must have knowledge that he is subject to the provisions that require him to file a rejection. On that phase of the case the record is silent. . . . The boy being a minor and not having a legal representative it certainly would seem but reasonable to assume from the facts that he did not have knowledge of the conditions under which he was laboring, and not having that knowledge, as required by the statute covering employment of the character in which he was engaged, he was in a position to maintain his action for the' recovery of damages caused by the wilful conduct of the driver of the truck.” The KijowsM case later came before the Supreme Court on leave to appeal (372 Ill. 311). The judgment of the Appellate Court was affirmed without passing upon the question here under consideration, the court finding that the injured boy who was hired by the truck driver to assist in making deliveries for a newspaper publishing company was not an employee of the latter.

Both parties call our attention to an article appearing in Volume 20, Vo. 3 (June 1942) Chicago-Kent Law Review by George W. Angerstein, who has written many treatises on the law of industrial compensation. Begining at page 202, the author discusses the question whether a minor would have to reject within six months under section 6 of the 'act. He cites the Walgreen, McDonald, Kijowski and other decisions and concludes that “There certainly are no clear statutory or constitutional time limitations against such minor, and in their absence and in view of the decisions of the courts [the Illinois cases cited and Decker v. Pouvailsmith Corp., 233 N.Y.S. 407], it very probably has to be assumed that, at least, until the appointment of a guardian there is no limit of time except the termination of the minor’s infancy as regards, (1) his right to bring a claim for benefits under the Compensation Act, (2) his right to file a rejection with the Industrial Commission of his right to benefits under the Act so as to proceed at common law, or (3) his right to sue at common law for damages due to personal injury./ ’

In Waechter v. Industrial Commission, 367 Ill. 256 (opinion filed October 15,1937), the court held that the order there entered “did violence to the rights of the minor son who was not represented at any stage of the proceeding by a guardian or next friend. It is well settled that a minor cannot commence or engage in a legal proceeding in his own name. (Walgreen Co. v. Industrial Com., 323 Ill. 194.) He can not appear by an attorney but must appear, if at all, by a representative, such as general guardian, guardian ad litem or next friend. (Hasterlik v. Hasterlik, 316 Ill. 72; 31 Corpus Juris, p. 1148.)”

From a consideration of the foregoing authorities we have reached the conclusion that in view of the clearly expressed public policy of the state, there can be no clear statutory time limitation against a minor under the provisions of section 6, until a guardian has been appointed. Plaintiff had no legal guardian and under the law he cannot be presumed to have been aware of the provisions of the statute. It was, therefore, legally impossible for him to have filed a rejection himself. .To charge him with the responsibility of doing so, even though the statute specifically provides that he is required to file a rejection as a condition precedent to enforcing his common-law rights, would amount to imposing upon him an obligation which he could not possibly perform, since he was incapable of appointing an agent or attorney, and could not because of Ms age, act for himself. We therefore hold that Ms common-law right to sue by his father and next friend was not taken from him by his failure to file a rejection, and consequently we think the court erred in entering judgment for defendant, notwithstanding the verdict.

For the reasons indicated, the judgment of the superior court is reversed and the cause is remanded with directions to enter judgment for plaintiff in the sum of $1,200 upon the verdict heretofore rendered in his favor by the jury.

Judgment reversed and cause remanded with directions.

Sullivaft, P. J., and Scanlan, J., concur.