author: Mr. Justice Bristow

text:
    Illinois Minerals Company et al., Appellants, v. Catherine M. McCarty, Executrix of Will of William E. McCarty, Deceased, Appellee, and Olive Branch Minerals Company, Defendant.

      Opinion filed March 2, 1943.
    Rehearing denied April 14, 1943.
    Lahsden & Lahsdeh, of Cairo, for appellants.
    Fordyce, White, Mayhe, Williams & Hartmah, of St. Louis, Mo., and Asa J. Wilbourh, of Cairo, for appellee.
   Mr. Justice Bristow

delivered the opinion of the court.

This is an appeal from part of an order of the circuit court abating the second, third and fourth counts of a complaint. The question involved is whether the cause of action alleged in either of these counts of the complaint, was one which survived under the Illinois Survival Statute.

The allegations contained in all of these counts are substantially as follows: In June 1933, Joe Webb was mill foreman at Elco, Illinois, for International Silica Company which was engaged i in the business of producing, mining, milling and selling silica. At a groat expense and by the diligence of its agents and officers, by widespread circularization of manufacturers, a profitable clientele was accomplished throughout the United States and Canada* One of the principal assets of the company was the record of this clientele. This record contained not only the names and addresses, but also the grade, price, and quantities of silica purchased by each. This record and list of customers was always kept secret, and was a valuable asset and property right. Its employees, including said Joe Webb who had access to its records, were instructed to keep said information confidential so that same could not come into the hands of its competitors.

On January 29, 1934, International Silica Company transferred its' business, good will and said information and list of customers to the plaintiff, Illinois Minerals Company, and the following month Illinois Minerals Company entered into an agreement with the plaintiff, Ozark Minerals Company in regard to operating its said mine at Elco.

Joe Webb continued as mine foreman for the plaintiffs, Illinois Minerals Company and Ozark Minerals Company. He surreptitiously and unknown to plaintiffs and in violation of express instructions which had been given him by them, copied' and made a list of the names of said customers and of sales, amounts and grades of silica purchased by such customers, from plaintiffs.

Plaintiff, And M. Davis, is president of Illinois Minerals Company and owner of all but two of its shares of stock and is an officer and large shareholder of plaintiff, Ozark Minerals Company. Defendant, Olive Branch Minerals Company is a competing company, engaged in the same business, in the same county. The original defendant, William E. McCarty was president of the defendant, Olive Branch Minerals Company and the owner of almost all of its stock, and had the control of its management.

On June 15, 1934, Joe Webb ceased to be mill foreman for plaintiffs and took with him said list of customers and information regarding the sales, amounts and grades of silica, though he knew it was the property of his employers and knew that the taking of the list with him constituted a violation of the trust and confidence which his former employers previously placed in him.

That thereafter said William E. McCarty learned that said Joe Webb had in his possession the list which he compiled as mill foreman for plaintiffs and said McCarty, Olive Branch Minerals Company and said Webb, knowing said list contained confidential information of great value to plaintiffs and that it would be of great value and source of profit to McCarty and Olive Branch Minerals Company, since Olive Branch Minerals Company was a new company in its field, that said list by use would immediately place it in a position it could not have reached without several years of solicitation of potential customers and expenditures of large sums of money; that McCarty, Olive Branch Minerals Company and Webb, with such knowledge, thereupon entered into a conspiracy whereby in concert they would by illegal, wilful, malicious, wrongful means by the use of said list which had been so illegally acquired, embark upon a ruthless plan to undermine and ruin the business of plaintiffs; that after said three-had so entered into said conspiracy, Olive Branch Minerals Company employed said Joe Webb as its mill foreman; that in furtherance of said conspiracy defendants, McCarty and Olive Branch Minerals Company, with the assistance of said Joe Webb, solicited the persons named on said list of customers which had been so illegally obtained and quoted prices to such persons for silica and related products which, in many instances, were less than cost of production and are continuing carrying- on the conspiracy which began with the illegal, malicious, wanton and wilful acquisition of said list; that defendants fraudulently concealed the above facts and that plaintiffs did not have knowledge that Webb had compiled said list, or defendants with Wehb had entered into said conspiracy, until after September 15, 1935; that as a result of said acts in furtherance of said conspiracy, plaintiffs have suffered and will suffer great damages.

Count III further alleged that Webb when ceasing to be mill foreman for plaintiffs, took with him and converted to his own use said list and information in violation of the trust and confidence of his former employers; that thereafter Webb sold said list to McCarty who knew same belonged to plaintiffs and that thereupon McCarty converted said list to his own use and the use of defendant Olive Branch Minerals Cqmpany.

Court IV further alleged that after Webb had so ceased to be mill foreman and had taken such list and information with him, that McCarty learned that Webb had same and induced Webb to sell same to McCarty which he did.

Later by amendment where throughout each count acts were characterized as “illegal, wilful, malicious, wanton and wrongful” the word “fraudulent” or “fraudulently” was inserted and statement was inserted that Webb stood in fiduciary relationship with his employer, and that his business was one of great trust and confidence and that he violated such duty.

McCarty died after the suit was instituted and his personal representative was substituted as defendant, in his stead and said amendments were made.

August 30, 1941, McCarty’s former attorney and ^attorney for defendants, filed a motion as amicus curiae to suggest his death and abate the suit which was granted. Leave was granted to file a motion that McCarty had died and that suit be abated. October 4, 1941 the court entered an order that the parties came and that plaintiffs moved to vacate said order of August 30 because no notice was served on plaintiffs. The court then ordered that plaintiffs’ motion to vacate said order dated August 30 be overruled, and further ordered that said motion of the amicus curiae to suggest the death and abate the suit “be and the same hereby is overruled.”

December 4, plaintiffs filed their motion to substitute the personal representative and suggested the death of William E. McCarty. December 5, the court entered an order that the executrix is made defendant instead of McCarty; that copy of order be served on executrix in 20 days and that plaintiffs are granted leave to amend complaint in 20 days. Said amendments to the complaint were filed December 22,1941.

January 7, 1942, the executrix by limited appearance in" her own proper person appeared and made a motion supported by affidavit, to show the court was wholly without jurisdiction of her person or to take further proceedings for the reason the action abated against McCarty at his death and was not an action which survived. January 9 the court entered an order that the parties came by their attorneys and by consent of parties, motion of the personal representative ■was withdrawn and she was given leave to plead in ten days.

January 10, 1942, the personal representative, by her attorneys,. filed her motion to abate and dismiss the suit against her for the reason the action under ' the laws of Illinois, did not survive against the personal representative of McCarty.

March 28, 1942, the court entered an order reciting the parties came by their attorneys, that the matter had been under advisement, that the motion to abate as to Count I was overruled, and sustained as to Counts II, III, and IV of plaintiffs’ complaint as amended.

The theory expressed in Count III is conversion of personal property. Appellee contends that conversion or trover could not lie for such copied list of names and information; that conversion and trover only lie for specific tangible personal chattels or such as tangible evidence of title to intangible or real property. Appellants contend that it will lie and asserts that the paper on which the list was written was tangible property. However, we do not find in the record any allegation that the names were copied on paper belonging to appellants. Appellants assert that the cause of action was not changed by thé addition of the words “fraudulent” and “fraudulently.” We believe appellee’s contention is sound. Dewitz v. Shoeneman, 82 Ill. App. 378, 379; Kerwin v. Balhatchett, 147 Ill. App. 561, 566.

Other jurisdictions have held that the appropriation of knowledge such as architectual ideas, betrayal of trade secrets and routes, are not subjects of conversion. Such cases cited are Olschewski v. Hudson, 87 Cal. App. 282, 262 Pac. 43; Mackay v. Benjamin Franklin Realty & Holding Co., 288 Pa. 207, 135 Atl. 613 and Roystone v. John H. Woodbury Dermatological Institute, 122 N. Y. Supp. 444, 67 Misc. 265; Professional Service Corp. v. Johnson, 316 Ill. App. 431.

The complaint charged conversion of a list of names and information, copied, but not of any paper of plaintiffs on which such names and information was written. Appellants rely on Olds v. Chicago Open Board of Trade, 33 Ill. App. 445; Barth v. Union Nat. Bank, 67 Ill. App. 131; Lewis v. Bidwell Elec. Co., 141 Ill. App. 33; Hayes v. Massachusetts Mut. Life Ins. Co., 125 Ill. 626, and Genslinger v. New Illinois Athletic Club of Chicago, 229 Ill. App. 428. In these cases cited, the subject under consideration was conversion of evidences of title; as certificate of membership of Board of Trade, certificate of corporate stock, of an insurance policy, and membership in a club.

In Hayes v. Massachusetts Mut. Life Ins. Co. the Supreme Court said at page 633; “and trover will lie for the wrongful conversion of valuable papers, or evidences of title to real or personal property, for .checks, promissory notes, bank bills, bonds, bills of exchange, drafts, certificates of stock in incorporated companies, securities of any kind, books of account, vouchers, etc. ’ ’

We believe the ruling of the trial court as to Count III, should be affirmed.

We do not believe that appellee waived her right to raise the question of abatement. Plea in abatement has been held to be the proper method of raising the effect of the death of a party, plaintiff or defendant, Stoetzell v. Fullerton, 44 Ill. 108. It is not a plea to the merits. Bacon v. Schepflin, 185 Ill. 122. In Life Ass’n of America v. Fassett, 102 Ill. 315, 328 it was held, that, until the personal representative of a deceased defendant had been brought into court, he was not supposed to be present or to know anything about the pendancy of the suit. The law fixes a certain order for pleading. If the personal representative appears and then fails to plead in abatement, but files some other plea on the merits, he waives right of abatement, Mitchell v. King, 187 Ill. 452, 460-461.

We do not believe the suggestion and motion filed by one of the defendants’ attorneys as amicus curiae prevented the personal representative from making appearance and filing plea in abatement.

The Civil Practice Act, 111. Rev. Stat., ch. 110, sec. 54 [Jones 111. Stats. Ann. 104.054] provides for the method of bringing the personal representative into the proceedings. We think the procedure was proper in this case.

Appellee contends that appellants have waived their rights to object to the plea in abatement, because appellants did not make their motion to strike the plea. But we do not agree with that contention and do not believe the authorities cited, support it. Appellee cites King v. Haines, 23 Ill. 340 and Sbertoli v. Clark, 263 Ill. App. 65. In the latter case it was contended that the affidavit supporting the plea was on belief. The court said that to have remedied defects in the form of the plea or to make objection to the affidavit available, plaintiff should have moved the court to strike it, before filing a replication. In this Sbertoli case the defendant filed his special appearance, demanded a trial by jury and later made a special demand for jury trial, filed motion to quash the service and writ which was denied, was then given leave to and did file his plea in abatement. Such cases do not support such contention of appellee.

Since no objection was made to the form of the plea in abatement in the case under consideration, such point of appellee is not well taken.

Appellant contends that only one motion in abatement may be filed and cites authorities, Bacon v. Schepflin, 185 Ill. 122, 130. That case holds that when the defendant had filed a plea in abatement and the court has disposed of it, it is irregular to file another and it may be stricken. In the instant case no motion to strike was filed. The court did not dispose of the motion or plea dated January 9. The order was that it was withdrawn by the parties. Appellant relies upon Grand Lodge Brotherhood of Railroad Trainmen v. Randolph, 186 Ill. 89, 90. In that case the court held, in effect, that where a first plea was not verified and while pending, a second one verified was filed without leave of court, the second was properly stricken on motion. Such authorities, we believe, do not support the point advanced.

The order of court on January 9, states the personal representative is given leave to plead within ten days. The record does not show that the personal representative asks for leave to plead. She had the right to plead abatement without leave. The following day the plea in abatement, which is referred to by appellant as plea in abatement or motion in abatement was filed by the executrix. We do not believe the authorities cited by appellant support the contention that appellee abandoned her right to file the motion on January 10,1942 to abate the suit as to herself, nor that she failed to file her motion or plea at the first opportunity. She was not bound to plead at all .until she was in position to be compelled to plead. Shepard v. Ogden, 2 Scammon, pages 257, 261.

There remains for consideration, the question whether Counts II and IV survive under the statute. 111. Rev. Stat. 1941, ch. 3, sec. 494 [Jones 111. Stats. Ann. 110.591] is relied upon by both parties. This statute recites that “in addition to the actions which survive by the common law, the following also survive : actions of replevin, . . . and actions for fraud or deceit.”

The parties assert and deny that assignability is the test of survivability. We are not favored with any direct authority that the cause of action as alleged in the complaint is one that is or is not assignable. However, assignability is a test of survivability, but not the sole test. North Chicago St. R. Co. v. Ackley, 171 Ill. 100; Wilcox v. Bierd, 330 Ill. 571, 585.

While under the common law, mo'st personal actions were held to abate, statutes have been passed in Illinois, from time to time, so that most causes of action now survive, including all actions for fraud or deceit. Warner v. Flack, 278 Ill. 303, 307.

The former statute recited survival of “and all actions for fraud or. deceit.” The present statute reads “and actions for fraud or deceit.” We do not think the change of wording- enlarges or limits the actions which survive. If the legislature had intended to limit survivability only, of the ancient action designated by common-law pleading as fraud and deceit, it would have said actions for “fraud and deceit,” and we do not think that it would have specifically used the words, “fraud or deceit.” In framing the recent administration- statute, where' the unnecessary word ‘ ‘ all, ’ ’ was eliminated, the legislature would also have changed the word “or” to “and,” had it intended a limitation, as appellee contends, to survival only of the old common-law action of fraud and deceit.

The cause of action alleged in the complaint is not one of those of such strictly personal nature that it is held to abate. It is well recognized that use of the word “fraudulently” in a pleading is merely the statement of a legal conclusion an.d that general allegations of fraud are insufficient.

The allegations alleged in the second and fourth counts, abundantly charge fraud and conspiracy in consummating fraud, on the part of the original defendants. Eliason v. Wilborn, 335 Ill. 352, 357, 358. The author in 23 Am. Jur., pages 753, 754, at length, , recites many instances constituting fraud and damage, resulting from fraudulent acts.

Acts which may constitute fraud extend to every possible case in which a fiduciary relationship exists. It may be moral, social or business. The rule embraces those informal relations which exists when one man trusts and relies upon another. The relationship of principal and agent is a familiar instance in which the principal of fiduciary relationship applies, in the strictest sense. Fraud may be based on false representation. It may be based on concealment; on fraudulent devices; on a wilful, malevolent act directed to perpetrate a wrong to the rights of others; unlawful appropriation of another’s property by design, or conduct that operates fraudulently on the rights of others, and is so intended. In short, it comprises all acts, of omissions and concealments, including breach of legal or equitable duty, trust or confidence, resulting in injury to another. Deceit is a species of fraud. Sometimes the words are used interchangeably. Deceit, is actual fraud and consists of any false representation or contrivance, where one person overreaches another.

In equity oh action based on fraud or conspiracy involving fraud survives irrespective of the survival statute. Geiger v. Merle, 360 Ill. 497. One who adopts and ratifies another’s fraudulent act, becomes liable therefor even though he was not a coconspirator. 23 Am. Jur., page 1008. Acts committed by another or for his own advantage approved by another after it has been committed, renders such other liable as if he himself had performed the fraudulent act. Aaron v. Dausch, 313 Ill. App. 524, 530.

Appellee has cited several cases supporting her contention in substance that the complaint fails to allege: wilful representation of a material, past-existing fact, known to be false; that same were relied upon by plaintiffs, without knowledge of the falsity, to their damage. Such cases cited are based upon fraud and deceit and false representation by representations made which were false. The theory of the complaint is not based upon representation of existing facts made by defendants but upon fraudulent acts and conspiracy.

Argument and cases cited by appellee that a promise of future action is not a fraudulent representation of a past existing fact; that statement of a fact must be known to be false and be relied upon by another to his injury are not authorities or argument denying survivability of an action of fraud as alleged in the complaint.

The court erred in entering its judgment and order abating the cause of action In the second and fourth counts. The court was correct in entering its judgment. and order abating the cause of action in the third count. The judgment of the court is affirmed as to the third count and is reversed and remanded as to the second and fourth counts with directions to overrule and deny the plea of abatement to the second and fourth counts.

Affirmed in fart and reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Stone

license: Public Domain

text:
    Fannie D. Holt, Administratrix of Estate of J. Marshall Holt, Deceased, Appellee, v. Illinois Central Railroad Company, Appellant.
    Opinion filed March 2, 1943.
    Rehearing denied April 14, 1943.

      Charles E. Feirich and John K. Feirich, both of Carbondale, for appellant; Vernon W. Foster and Charles A. Helsell, both of Chicago, of counsel.
    Fletcher Lewis, of Murphysboro, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This is a suit brought by appellee as administratrix of the estate of her husband to recover damages for his death, which occurred when the automobile which he was driving was struck by a train of appellant on a public road crossing in Vergennes, Illinois.

The complaint consists of one count and alleges negligence on the part of the defendant in the speed of the train and failure to give signals; it also alleges due care on the part of the deceased. The answer denies all the material averments of the complaint. The undisputed facts in the record show the following situation:

Vergennes is an incorporated village of approximately three hundred ten population. The train was a special and not a regular train. The railroad track of appellant runs in a general northerly and southerly direction through the town and is straight and approximately level for more than a mile north of the Hack avenue crossing where the collision occurred. The home of deceased was on Main street, which is east of and adjoins the railroad right of way and was approximately 200 feet from the track. He had lived there 5 years and in Vergennes 15 years. Harrison street runs north and south and adjoins the railroad • right of way on the west. Hack avenue runs east and west and crosses Harrison street and the railroad track at right angles. Schimpf’s service station is on the west side of Harrison street, 120 feet from the Hack avenue crossing. Between Schimpf’s service station and the intersection of Hack avenue and Harrison street to the south there is the post office and Bay Eastern’s feed store. There is a sidewalk in front of Schimpf’s service station which extends to the intersection of Hack avenue and Harrison street.

Appellant’s railroad is on an embankment through the village which, at the Hack avenue crossing; is approximately 4 to 5 feet above the level of the intersection of Hack avenue and Harrison street. The Hack avenue crossing is 16 feet wide at the railroad, which is approximately the same width as the street.

The depot building and platform is on the east side of the railroad track about 206 "feet north of the crossing. There is only one main track, which is the westerly track and the first track reached by Holt. The two other tracks to the east are switch tracks.

From the west side of Harrison street to the railroad track for a distance of 840 feet north of the Hack avenue crossing there are no buildings, shrubbery, or any other obstructions to the view of any kind whatever. Virgil Holt, a son of deceased and who took the measurements for appellee, stated that at a point 16 to 23 feet from the track he could not see beyond the toolhouse 840 feet to the north, but that when he got within 6 feet of the track there was no obstruction to his view except some semaphore signals about 1500 feet north of the crossing, which were not a serious obstruction, and that when he got within 3 feet of the track he could see up the track a mile. He also testified that he had worked on the car involved in the collision that morning, and that at 10 miles an hour the brakes on that car would stop it within 2 feet.

Appellant’s train approached from the north,at a speed of 65 to 70 miles per hour. The weather was clear and cold, and the time was approximately 1:30 in the afternoon. The sun was shining.

Mr. Holt was in good health and was not affected in ' any way in health or physical condition. He was possessed of all Ms faculties, hearing, eyesight, etc. Mr. Holt left his home east of the railroad track about 1:15 p. m. and drove north and crossed the railroad track at the crossing north of Hack avenue. He proceeded south on Harrison street to Schimpf’s service station to get some antifreeze. This service station was visible from his home across the tracks, and his son, who was at the home, saw him standing in front of the service station. He left the service station driving from 10 to 15 miles an hour, which speed did not change until the time of the impact. He did not change the course of his car other than to go around the car of Fern Williams, who had stopped and was waiting for the train to pass. He continued on up to the crossing and was struck.

Fern Williams, one of appellee’s witnesses, was in her automobile on the west side of Harrison street in front of Ray Eastern’s feed store, which is three doors south of Schimpf’s service station. She saw Holt at the filling station having something put in his. radiator. She planned to cross the railroad at Hack avenue, looked and saw the approaching train, and stopped her car just north of the intersection of Harrison street and Hack avenue to let the train pass. Holt left Schimpf’s service station, drove south, passed by the stopped car of Mrs. Williams, and turned east on to the crossing. His speed was from 10 to 15 miles per hour and he neither increased nor decreased the speed.

At the time Holt passed Fern Williams in her car the train was in plain view of him, and was in plain view of anyone sitting in an automobile at that point. The train was higher than she was, the engine and car were big and were in plain view to her all of the time and that is the reason she stopped. .

: As Holt made the turn to the east to cross the track, Reverend York, who was approaching on foot from the' east in the center of the street, crossed the track on which the train was approaching and stopped approximately an arm’s length west of the track and waved both arms, holding a milk bottle in one hand, and was yelling for Holt to stop. At the time York stopped, the machine had not made the turn, but was preparing to go around the corner and was about 40 feet from the track. At that time the locomotive was about 500 feet up the track near the next crossing to the north. The Holt car kept on coming at a speed of between 10 and 15 miles an hour, which did not change. York had to step off to the right to keep from being run down by Holt’s automobile. York was yelling and made plenty of noise trying to stop Holt.

The only substantial dispute in the facts relates to signals. Appellee offered the evidence of six witnesses who did not hear the signals. Two of them were in the house and heard the train approach. The other four saw the train. Appellant, on this point, offered the evidence of twelve witnesses who testified that signals were given by the approaching train. A number of these witnesses testified that the whistle blew practically continuously for more than a quarter of a mile prior to the time of the collision.

There is also some dispute as to whether, from a point approximately 16 feet west of the crossing, the Vision to the north of the driver of an automobile is unobstructed for more than 840 feet. Some of the witnesses say that the section and tool house, which are 15 feet from the west side of the track and 840 feet north of the Hack avenue crossing, constitute an obstruction to the view of a train approaching from the north, while some of the witnesses say that the view to the north was unobstructed for more than a mile.

At the close of appellee’s evidence defendant moved in writing for a directed verdict of not guilty and tendered a written instruction. The motion was denied and the instruction refused. At the close of all the evidence in the case appellant again moved in writing for a directed verdict of not guilty and tendered a written instruction, the ruling on which was reserved by the court.

The jury returned a verdict finding appellant guilty and assessing appellee’s damages at fifteen hundred dollars. Appellant filed a motion for judgment notwithstanding the verdict, which motion was overruled by the court, and at the same time the court also overruled the motion for a directed verdict, upon which the court had reserved ruling, and judgment was entered in- favor of appellee and against appellant for fifteen hundred dollars and costs.

This appeal rests upon one proposition: Was plaintiff’s intestate in the exercise of reasonable care for his own safety at the time he was killed? The appellant insists that the court erred in not taking the case from the jury and for not awarding the defendant judgment notwithstanding the verdict. Both, however, and the argument presented thereon, rest upon the one question.

We have examined this record with minute care and have traced plaintiff’s intestate from the filling station where he bought gas that day, time and again, to the railroad crossing where he was killed. We have affirmatively looked for some act or acts, or even suggestions of acts. of care of any kind on the part of the deceased. We can find none. When he left the filling station he passed the automobile of a woman who saw the train coming and who was waiting for it to get by. He turned east and drove the short distance between the corner of Harrison street and Hack avenue to the railroad at a rate of speed ranging from 10 to 15 miles an hour. As he approached the track within 10 feet or some major portion thereof, he could have seen the train coming a distance of 840 feet. As he approached the track and while the train was some 500 feet away, Reverend York was approaching in the direction of plaintiff’s intestate from the east, near the center of the street. He crossed the track on which the train was approaching and when he was about an arm’s length west of the track he waved both arms at plaintiff’s intestate and yelled for him to stop. At this time plaintiff’s intestate was within less than 40 feet of the track. His car was in perfect working order and could have been stopped at the rate he was going, in a distance of 3 feet according to the testimony. Bather than being careful the deceased was apparently careless from the time he left the filling station, and there is nothing to be said in his favor on the question of using care.

Under this state of facts it seems almost useless to repeat what the courts of this state have consistently and conclusively held so often. In the case of Adair v. Chicago & Alton R. Co., 299 Ill. App. 626 (Abst.) the writer of this opinion was the trial judge, and with great misgivings refused the peremptory instruction offered and the motion for judgment notwithstanding the verdict. The Appellate Court in that case brushed other questions aside, saying that the primary question was whether there was any proof in the record showing that the deceased was in the exercise of due care for his own safety. Briefly, the facts in that case are, that on November 10,1936, early in the morning, while still dark, James Adair drove his truck in an easterly direction on North Grand avenue, in the city of Springfield, to the point where the tracks of the Alton intersect said street. Double tracks formed this intersection. Adair was driving east towards the tracks and would approach the south bound track first. A street light was on the north side of Grand avenue, 20 feet west of the south-bound railroad track. There is a fire engine house 55 feet west of the railroad tracks. The track nearest the engine house is the one on which-the train was running. The front of the firehouse stands about 12 feet north of the north curb of the avenue. It was 35 feet wide, 70 feet long and 30 feet high. The east wall of the fire house is at right angles to the avenue, and not parallel to the tracks. The testimony showed that from a point 60 feet west of the westernmost railroad rail, a truck driver going east on the avenue could plainly see evidence of a railroad, such as tower house, gates, signs. He also testified that such driver would have to be about 60 or 70 feet west from the south-bound track before he could get a clear view down the railroad for 200 or 300 feet, and that as you go further east on the avenue, the view broadens down the railroad to the northeast. Photographs were introduced showing slight obstructions, such as telephone poles, running along the west side of the right of way and a small “no trespassing sign” located on said right of way. In this situation the deceased drove his truck east on the south side of North Grand avenue, traveling at the rate of 8 miles an hour. He drove straight onto the track, was struck and killed. In view of these facts the court said, “It seems clear to us from the manifest weight of the evidence that appellee has failed to prove that the deceased was in the exercise of due care and caution for his own safety at the time of the accident. The burden of proof is always on the plaintiff in actions of this character to show that the deceased was in the exercise of due care at the time he was injured. Stack v. East St. Louis Ry. Co., 245 Ill. 308. Proof by the appellee in this case that the deceased was in the exercise of ordinary care for his own safety is essential. Greenstreet v. A. T. & S. F. Ry. Co., 234 Ill. App. 339.” The evidence showed clearly that deceased, after passing the engine house had an almost unobstructed view down the track for 200 or 300 feet, and that after reaching a point at least 40 feet west of the tracks he had a clear view down the railroad tracks. The court then reiterated what has been so often stated, in substance, as follows: “It is generally recognized that railroad crossings are dangerous places, and one crossing the same must approach the track with the amount of care commensurate with the known danger; and when a traveler on a public highway fails to use ordinary precaution while driving over a railroad crossing, the general knowledge and experience of mankind condemns such conduct as negligence.”

Cases embodying the principle laid down in the Adair case might be multiplied. In Sheehan v. Chicago N. S. & M. R. Co., 269 Ill. App. 477, where the court concluded that the driver was not in the exercise of ordinary care, the court said, “Ordinary care requires that one in approaching a railroad crossing must not only look and listen, but he must avail himself of every opportunity to do so, to see and hear, and he must see and hear that which the circumstances show was visible and audible to a person in the. exercise of ordinary care.” That ’ principle is followed in Chicago, B. & Q. R. Co. v. Mahara, 47 Ill. App. 208. In the case of Greenstreet v. Atchison, T. & S. F. Ry. Co., supra, the plaintiff was riding in a motor car. He looked for the train more than 50 feet back from the track at a point where his view was obstructed. It appeared that if he had looked thereafter he could not have failed to see the train. The court said, “Proof by the plaintiff that he was in the exercise of ordinary care for his own safety is essential to his recovery and the only evidence of anything that the plaintiff did to avoid the injury is that he looked for a train more than fifty-five feet back of the track at a point where it is undisputed that his view was obstructed. There is no evidence of any kind to show that from the time he passed the obstructions until the collision he did anything to ascertain whether a train was approaching. If he had looked, he could not have failed to see the train.”

In our view of this case, if plaintiff’s intestate had looked at any reasonable distance from the time he passed Mrs. Williams’ car, he could have seen this train. She saw it. Why did not he ?

“The rule has long been settled in this state that it is the duty of persons about to cross a railroad track to look about them and see if there is danger, and not to go recklessly upon the track but to take proper precaution to avoid accident. It is generally recognized that railroad crossings are dangerous places, and one crossing the same must approach the track with the amount of care commensurate with the known danger, and when a traveler on a public highway fails to use ordinary precaution while driving over a railroad crossing, the general knowledge and experience of mankind condemns such conduct as negligence. One who has an unobstructed view of an approaching train is not justified in closing his eyes or failing to look, or in crossing a railroad track in reliance upon the assumption that a bell will be rung or a whistle sounded. No one can assume that there will not be a violation of the law or negligence of others and then offer such assumption as an excuse for failure to exercise care. The law will not tolerate the absurdity of allowing a person to testify that he looked but did not see the train when the view was not obstructed, and where, if he had properly exercised his sight, he must have seen it. (Greenwald v. B. & O. R. R. Co.)” This case disposes of those cases which appellee claims hold that “looking” for a train is not essential. In those cases an examination will disclose some extraordinary circumstance such as raise a question of fact as to whether or not the driver of the car was not invited to cross the railroad. We know of no case, nor do we ever expect to hear of due from any court of this state, which holds that it is not necessary to look when you cross a known place of danger such as a railroad crossing anywhere, unless there is some particular circumstance which causes a reasonable person to feel secure without looking.

In the case of Provenzano v. Illinois Cent. R. Co., 357 Ill. 192, where the view was approximately for the same distance as involved in the case at bar, the court held that the driver was guilty of contributory negligence as a matter of law and held to the principle announced in the Greenwald case, supra.

It is useless to discuss whether plaintiff’s intestate heard the signals which the evidence shows. It is apparent that if he had listened he would have heard and if he had looked he would have seen. It is unthinkable that anyone who is exercising reasonable care for his own safety can be close enough to a train to be struck by it and yet not hear or see it when there is nothing to detract from the hearing and nothing to detract from the ability to see.

Appellee argues that the intestate might have been confused. What is there to confuse one when another person is standing in front of your car waving you to stop at a railroad crossing? We fail to see. He also argues that a train was due from the south about that time; that would not relieve plaintiff’s intestate of the duty of looking towards the north, or of taking warning. Neither would the fact that it was not á regular train, but was a special, relieve him of the responsibility of due care for his own safety. Our courts have said in strong enough language, and often enough, that a railroad is a known place of danger, and that it behooves every traveler upon the public highway to take note of that and use care commensurate therewith.

In our judgment it is useless to write more. This is just another of those all too numerous cases in which the plaintiff seeks recovery when his conduct is utterly void of those elements which make up .the conduct of a reasonably prudent man.

There cannot be any recovery in this case, and the court erred in not giving the proferred instruction at the close of all the evidence, or in not rendering judgment in favor of the defendant non obstante veredicto. For such error the case is reversed. It is remanded to the trial court with instructions to enter judgment in favor of defendant' notwithstanding the verdict.

Reversed and remanded ivith instructions.


author: Mr. Presiding Justice Sullivan

text:
    Faith Ives Cravens et al., Appellees, v. Clarence S. Haas, Conservator, et al., Defendants. Clarence S. Haas, Conservator, et al., Appellants.
    Gen. No. 41,649.
    Opinion filed April 20, 1943.

      Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for certain appellants.
    Osborne, Kline & McGurren, of Chicago, for certain other appellants; Wilson L. Kline, of Chicago, of counsel.
    Bradburn & Dammann, of Chicago, for cross appellant.
    Dixon, Devine, Bracken & Dixon, of Dixon, and M. B. Kennedy, of Chicago, for appellees.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

Henry A. Mix died September 22, 1935. This is a suit to construe his last will and testament, which was executed August 30, 1935. Plaintiffs, Faith Ives Cravens, Isabelle Ives Canfield (formerly Isabelle Ives Jewett), Charles Ives, George Ives, Jr., and William Ives, a minor, by George Ives, his guardian, are the children of testator’s sister, Sarah Ives, who died April 8, 1932, which was more than three years prior to the execution of the testator’s last will. Under this will plaintiffs were specific legatees of $2,000 apiece. In this proceeding for construction of the will plaintiffs sought the allowance to themselves as a class of one half of a trust estate established by said will and the decree of the trial court granted such allowance.

The defendants are:

1. Clarence S. Haas, conservator of the estate of May M. Jackman, the only surviving sister of the testator. She was adjudicated incompetent in 1938, more than two years after testator’s death.

2. C. Houlton Jackman and Margaret Jackman Borland, the two children of May M. Jackman. Their rights are entirely dependent upon the rights of Haas, conservator.

3. Florine Mix, wife of testator, who was executrix of the will and cotrustee of the testamentary trust.

She renounced under the will.

4. First National Bank of Chicago, cotrustee of the testamentary trust.

5. George W. Dammann, whom the court appointed trustee for persons not in being.

The value of the trust estate was $241,533.16 when the decree was entered and the following allowances for attorneys’ fees and expenses were made to the respective parties, payable from said trust estate:

Defendants, Clarence S. Haas, conservator of the estate of May M. Jackman, incompetent, and C. Houlton Jackman and Margaret Jackman Borland, children of said May M. Jackman (hereinafter for convenience sometimes referred to collectively as appellants) appeal particularly from those portions of the decree which found “that said last will and testament is ambiguous and should be construed”; which found that plaintiffs, the children of Sarah Ives, deceased sister of testator, are entitled to receive one half of the trust estate and which ordered that said trust estate be divided as follows: “One-half part to Clarence S. Haas, as Conservator of May M. Jack-man, incompetent, and the remaining one-half part to be divided equally among Faith Ives Cravens, Isabelle Ives Canfield, formerly Isabelle Ives Jewett, Charles Ives, George Ives, Jr., and George Ives, guardian of William Ives, a minor”; and which found that plaintiffs were entitled to receive $20,000 as attorneys’ fees and $221.65 for expenses and costs advanced by them and ordered that said amounts be paid out of the trust . estate.

The cotrustees’ appeal questions those portions of the decree which ordered the acceleration of the distribution of the trust estate and which ordered the allowance of attorneys’ fees and expenses to plaintiffs and to appellants.

George W. Dammann, trustee for persons not in being, filed a cross-appeal questioning that part of the decree which ordered the acceleration of the distribution of the trust estate.

Plaintiffs filed separate cross-appeals in which they question the attorneys’ fees allowed under the decree to appellants and to the cotrustees.

The cotrustees and Dammann assert in their brief that, regardless of the renunciation of the will by Florine Mix, widow of the testator, the trial court erred in decreeing acceleration of the distribution of the trust estate and that said distribution should not be made until after the death of Florine Mix. It is unnecessary to determine the question concerning the acceleration of the distribution of the trust estate since Florine Mix died October 23, 1942 and her death was suggested of record October 28, 1942.

Plaintiffs ’ amended complaint consists of two counts, the second of which was abandoned upon the trial. The first count contained the following, material allegations:

“That after certain specific bequests, set out in paragraphs numbered IV, V and VI of said Last Will and Testament . . ., and also after certain specific bequests to his widow, Florine Mix, set out in paragraphs II and III of said Last Will and Testament, which said specific bequests in paragraphs II and III were renounced by said Florine Mix, the said Henry A. Mix, deceased, gave, devised and bequeathed unto said Florine Mix and The First National Bank of Chicago, a corporation, successor in trust to First Union Trust and Savings Bank as trustees, all of the rest and residue of his estate, real, personal and mixed, wherever situated, which remained after the payment of his debts, inheritance and estate taxes, for the uses and purposes therein more fully set forth.

“That said Last Will and Testament provided in subparagraphs (6), (7) and (8) of paragraph VII of said Last Will and Testament:” [Here follow said subparagraphs which the trial court was asked to construe and which will be hereinafter set forth.]

“That it is the contention of the plaintiffs herein that upon the renunciation of said Last Will and Testament of Henry A. Mix by Florine Mix,-the widow of the said Henry A. Mix, deceased, the plaintiffs were entitled as a class to have an undivided one-half (%) interest in and-to all the assets of the trust established and created by Paragraph VII of said Last Will and Testament of Plenry A. Mix, presently distributable to them.

“That the plaintiffs contend that they are entitled to an undivided one-half (%) interest in and to all the assets, income and accretions thereto, belonging to the trust created by Paragraph VII of said Last Will and Testament, pursuant to the terms and provisions of Sub-paragraph (8) of Paragraph VII thereof; and that their interest in said trust so created is presently distributable to them; that the above questions and contentions arise out of a difference of opinion as to the construction and true meaning of the various clauses of said Last Will and Testament above referred to, which can only be properly determined by decree of this Court ....

‘1 That the said Henry A. Mix, deceased, was a highly intelligent, able and successful business man; that he was a man of strong will and dominating personality that said Last Will and Testament of Henry A. Mix, deceased, as admitted to probate was a redraft of a former will redrafted and compiled under the direction and supervision of the said Henry A. Mix, deceased, by incorporating therein and by recopying and using actual pages of a former will which was in dire form and which is attached hereto and made a pa.'t hereof; that said Last Will and Testament, as admitted to probate, was drafted and executed in the manner hereinabove alleged after the death of the testator’s deceased sister, Sarali Ives, also known as Sada Ives, who was the mother of these plaintiffs, with the intention of preserving for them the interest their mother would have taken in said trust estate.

“That said Last Will and Testament of Henry A. Mix, deceased, is ambiguous, equivocal and confusing in the manner and form hereinabove stated and cannot be executed without the aid and advice of a Court of Equity and that the Court should allow to these, plaintiffs a reasonable attorneys’ fee and other proper expenditures made by them for filing the complaint and amended complaint herein and for all other services that it is necessary for them to perform on behalf of the plaintiffs and the estate of Henry A. Mix, deceased;”

Both the last will and the former will of the testator were attached to and made part of plaintiffs ’ amended complaint.

In their answer to the amended complaint appellants denied that testator’s last will was ambiguous and that it required construction; that plaintiffs were entitled to receive any part of the trust estate; or that they should be allowed attorneys’ fees or expenses, payable out of the trust estate.

The theory of appellants as stated in their brief is in part as follows:

“First, that subparagraph (6), reading as follows: “ ‘ (6) The entire net income from the trust estate commencing at the time of my death, shall be paid to my wife, Florine Mix, in quarterly installments during her lifetime. Upon the death of my said wife, the ■l surviving Trustee shall convey, transfer and assign said trust estate to my sister, May M. Jackman, and ^Htthe trust hereby created shall thereupon cease and deermine.’

^^■ompletely disposes of the entire trust to May M. Jack-^Ban; that subparagraph (6) is the only provision in ^^Hb.e will which makes specific disposition of the trust is therefore conclusive; that the deceased Sarah is not mentioned in the will at all, and that her ^^^^■dren, the plaintiffs, are only mentioned as specific ^^^^Eatees of $2,000 apiece;

Second, that subparagraphs (7) and (8), on which ^^BFaintiffs rely, taken verbatim from the previous will, ^^Heading as follows:

“ ‘(7) In the event that either of my said sisters ^Hrshall have predeceased my said wife, leaving no issue, Hr the surviving Trustee shall convey, transfer and asir sign said trust estate to my surviving sister, and the v trust hereby created shall thereupon cease and deter-E mine.

“ ‘ (8) In the event that my said sisters or either of them, shall predecease my said wife, leaving issue surviving, the surviving Trustee shall convey, transfer and assign the share of such deceased sister or sisters in said trust estate among her descendants, per stirpes and not per capita. . . .’ are inoperative because of the explicit terms of sub-paragraph (6-); but, in any event, when construed strictly and grammatically, they make no provision whatsoever for Sarah Ives or her children because:

“(a) the words ‘said sisters’ in subparagraph (7) refer only to May M. Jackman previously mentioned in the will and to Faith Mix (a deceased spinster) previously mentioned in the will and cannot refer to Sarah Ives who is nowhere mentioned in the will: (b) the words ‘said sisters’ in subparagraph (8) can only refer to Faith Mix and May Jackman for the same reason; (c) the words ‘the share of such deceased sister or sisters’ in subparagraph (8) to be conveyed ‘among her descendants’ leave nothing whatsoever t-the plaintiffs, descendants of Sarah Ives, because sb was given no share of the trust; it was all given May M. Jackman by and under subparagraph (6); ai (d) these subparagraphs are purely substitutionary nature, i.e., their purpose was to prevent the laps? of the gift of the trust to May and its passing as ii state property; but, May being alive, these provisi are now of no moment at the time of the renunciati

‘ ‘ Third; that, after the death of Sarah Ives, testa revised and redrafted his former will . . . by co pletely deleting the name of Sarah Ives, and givin specific bequests of $2,000 to each of her children i lieu, of any participation in the trust; that the testator through oversight included subparagraphs (7) and (8) from his former will without changing ‘sisters’ to ‘sister’;

“Fourth, that the court wrongfully made an entire new will for the testator by arbitrarily decreeing one-half of the trust to plaintiffs; that if the court is to disregard the specific and final provisions of subparagraph (6), and is going to give any effect to the word ‘sisters’ in subparagraphs (7) and (8), it cannot know whether Sarah Ives and her descendants are to receive one-half, one-third, or some other fraction of the trust —Sarah is given no share by the will . . . . ”

Plaintiffs’ theory is that a proper construction of the last will of the testator within its four corners and especially of subpars. 6, 7 and 8 of par. VII thereof entitled them as a class to one half of the trust estate.

It should be observed at the outset that, while plaintiffs were unsuccessful in having admitted as evidence certain pages of the testator is former will because of their failure to properly identify same, the former will itself, which was incorporated as part of'the amended complaint, may be examined for possible admissions or admissions against interest made therein by plaintiffs. It appeared upon the trial that when the testator brought his former will to his then attorney for redrafting subsequent to the death of his sister, Sarah Ives, the mother of plaintiffs, subpar. 6 of par. VII thereof was in the following form:

“(6) The entire net income from the trust estate commencing at the time of my death shall be paid to my wife, Florine Mix, in quarterly installments during her lifetime. Upon the death of my said wife, the surviving Trustee shall convey, transfer and assign said trust estate to my sisters-, May M. Jackman and Sarah-Ivcs, share-and share-alike, and the trust hereby created shall thereupon cease and determine.”

It will be noted that when he brought his former will to his attorney’s office for redrafting the testator himself had deleted in subpar. 6 of par. VII thereof the last letter “ s ” from the word ‘ ‘ sisters ’ ’ and the words “and Sarah Ives, share and share alike.” Subparagraphs 7 and 8 of par. VII of the former will were incorporated without change in the last will. The language of subpar. 8 “in the event that my sisters or either of them shall predecease my said wife, leaving issue surviving, the surviving Trustee shall convey, transfer and assign the share of such deceased sister or sisters in said trust estate among her descendants, per stirpes and not per capita” was entirely appropri- • ate as a substitutionary clause to subpar. 6 of par. VII of the former will, which designated May M. Jackman and Sarah Ives as the beneficiaries of the trust under said former will. Under subpar. 6 of par. VII of the former will the testator clearly intended that his two sisters May M. Jackman and Sarah Ives should share equally in the trust estate after the death of his wife and it is our opinion that he just as clearly intended under subpar. 6 of par. VII of his last 'will, which was executed after the death of Sarah Ives, that his sister May M. Jackman should he the sole beneficiary of the trust. Wb think that the provisions of subpars. 6, 7 and 8 of par. VII of the former will considered in connection with the same numbered subparagraphs of the last will are sufficient in themselves to constitute' an admission on the part of plaintiffs that whatéver seeming ambiguity exists in subpar. 8 of par. VII of the last will resulted from the testator’s failure to change the language of the substitutionary clause contained in said subpar. 8 to conform with the complete disposition of the trust estate to May M. Jackman as made in subpar. 6 of par. VII of the last will.

' We turn now to consider the last will and testament without reference to the former will. The construction of said will is limited to ascertaining the testator’s intention as shown within its four corners. In the recent case of Cahill v. Michael, 381 Ill. 395 (advance report No. 4), the following general rules governing the construction of wills are set forth at pp. 400, 401:

c i There are certain fundamental rules which govern the construction of wills. And at the outset we may say that cases upon the construction of wills do not have the controlling force of precedents that they do in other cases for the reason that the form of a will does not follow a common standard, such as do deeds, leases, contracts and other similar written documents, but is a writing found in a great variety of forms, and executed under circumstances peculiar to each individual case. Walker v. Walker, 283 Ill. 11; Smith v. Garber, 286 id. 67.

“In order to construe a will the court will examine the surrounding circumstances for the purpose of placing itself in the position of the testator as it existed when the will was made. (Himmel v. Himmel, 294 Ill. 557; Quigley v. Quigley, 370 id. 151; LaRocque v. Martin, 344 id. 522; Moffet v. Cash, 346 id. 287; McCormick v. Sanford, 318 id. 544.) But if the language of the will is clear the court will not consider surrounding circumstances for the purpose of varying an intention clearly expressed. (Tomlin v. Laws, 301 Ill. 616; Knight v. Knight, 367 id. 646.) The intention of the testator is to be ascertained from the will itself. (Chapin v. State Treasurer, 361 Ill. 645; Levings v. Wood, 339 id. 11.) And when the will is examined the court cannot begin by assuming a given intention upon the part of the testator. (Pontius v. Conrad, 317 Ill. 241; Wickizer v. Whitney, 364 id. 125; LaRocque v. Martin, supra.) The question always is, what is the meaning of the words used in the will? (Dollander v. Dhaemers, 297 Ill. 274; Pontius v. Conrad, supra; Knight v. Knight, supra.) And above and beyond these general rules, if the intention of the testator manifested in the form required by law is clear, the court will uphold it, even though a different result would be reached by rules of construction applying to specific provisions of the will. (Brittain v. Farrington, 318 Ill. 474; Himmel v. Himmel, supra.) Or, as we said in Smith v. Shepard, 370 Ill. 491, ‘The intention of a testator manifested in his will is determined in two ways. One, by ascertaining his actual meaning from the words employed, to which all rules of construction give way, and the other, by finding his presumed intention gathered by the application of rules of construction applicable to all cases where the meaning is obscure, doubtful or uncertain. ’ ”

As already shown plaintiffs sought construction of the following subpars. of par. YII of the will, which paragraph created the trust in question:

“(6) The entire net income from the trust estate commencing at the time of my death, shall be paid to my wife, Florine Mix, in quarterly installments during her lifetime. Upon the death of my said wife, the surviving Trustee shall convey, transfer and assign said trust estate to my sister, May M. Jackman, and the trust hereby created shall thereupon cease and determine.

“(7) In the event that either of my said sisters shall have predeceased my said wife, leaving no issue, the surviving Trustee shall convey, transfer and assign said trust estate to my surviving sister, and the trust hereby created shall thereupon cease and determine.

“ (8) In the event that my said sisters or either of them, shall predecease my said wife, leaving issue surviving, the surviving Trustee shall convey, transfer and assign the share of such deceased sister or sisters in said trust estate among her descendants, per stirpes and not per capita . . .

As heretofore stated Florine Mix, testator’s widow, renounced the will during her lifetime and died during the pendency of this appeal. It must be conceded that by the use of the language in subpar. 6, “upon the death of my said wife, the surviving Trustee shall convey, transfer and assign said trust estate to my sister, May M. Jackman, and the trust hereby created shall, thereupon cease and determine,” the testator made May M. Jackman the sole beneficiary of the trust estate. No disposing words could be plainer or clearer to manifest his intention that his sister May M. Jack-man and she alone was to receive said estate in its entirety. The specific naming of the beneficiary in a will, without more, excludes all other beneficiaries.

Since the foregoing subpar. 7 contains no provisions that are pertinent or that could possibly have any bearing on the construction of the will it is unnecessary to discuss same.

Plaintiffs claim in their amended complaint and claim here that the terms and provisions of subpar. 8 of par. VII of the will are ambiguous and that a proper construction of same warrants the conclusion that the testator intended by said subpar. 8 to modify subpar. 6 to the end that they as a class, being the surviving ' children of Sarah Ives, are entitled to receive one half of the trust estate. It is contended that the ambiguity calling for construction is presented by the use of the words which we have italicized below in subpar. 8:

“ (8) In the event that my said sisters or either of them, shall predecease my said wife, leaving issue surviving, the surviving Trustee shall convey, transfer and assign the share of such deceased sister or sisters in said trust estate among her descendants, per stirpes and not per. capita . . .

While the provisions of subpar. 8 are inconsistent with the provisions of subpar. 6 of par. VII of the last will and might for that reason be said to be ambiguous, such inconsistency and apparent ambiguity are rendered unimportant and immaterial in ascertaining the testator’s intention, since his intention is clearly manifested when the provisions of subpar. 8 are considered in the light of subpar. 6, which completely disposed of the trust estate by making May M." Jackman the sole beneficiary thereof, thus'leaving no part or share of said estate for distribution to the children of Sarah Ives. The word “said” immediately before the word “sisters” in subpar. 8 cannot possibly refer to the testator’s deceased sister Sarah Ives since she was not theretofore mentioñed in any portion of the will. It might be added that Sarah Ives ’ name was not mentioned in the will at all. The only “share” plaintiffs could have in the trust created by the will would be the share of their ancestor and since their mother Sarah Ives was given no share of the trust estate under subpar. 6, they therefore were not entitled to receive any share. There was only one share in the trust ánd as already stated that was given to May M. Jackman under subpar. 6. This specific gift cannot be emasculated by implication. The italicized language in subpar. 8 was inaptly, inaccurately and inappropriately used therein but it surely cannot be said that the use of such language could be held to modify the express, explicit bequest of the entire trust estate to May M. Jackman. Subparagraph 6 of par. VII of the will is controlling as to the testator’s intention and, while subpar. 8 is in any event inoperative because Florine Mix, the testator’s widow, not only renounced under the will but predeceased May M; Jackman, the only reasonable interpretation to be given subpar. 8 in view of the disposition of the trust estate by subpar. 6 is that it was purely intended as substitutionary and was designed to prevent the lapsing of the gift to May M. Jackman by giving the property to her descendants in the event that she predeceased the testator’s wife. In Cahill v. Michael, supra, the Supreme Court said at pp. 405, 406 :

“In construing' a will the courts have not only stricken words from a will, but have inserted or transposed words in order to arrive at the true intention of the testator. In Jarman on Wills, 5th ed., vol. 2, page 53, after citing a number of illustrative cases, it is said: ‘These cases also exemplify a rule . . . that where there is a clear gift in a will it cannot afterwards be cut down except by something which with reasonable certainty indicates the intention of the testator to cut it down.’ To the same purpose Tripp v. Krauth, 340 Ill. 11, hfilds a later provision in a will will not cut down an earlier one unless it is as clear and unambiguous as the original provision, (Jensen v. McMahon, 324 Ill. 574; Sweet v. Arnold, 322 id. 597.) It follows a specific definite gift is not reduced or destroyed by an indefinite or uncertain provision, the meaning of which is conjectural.

“It is also said in Jarman on Wills, supra, ‘It is clear that words and passages in a will, which are irreconcilable with the general context, may be rejected, whatever may be the local position which they occupy; for the rule which gives effect to the posterior of several inconsistent clauses must not be so applied as in any degree to clash or interfere with the doctrine which teaches ns to look for the intention of a testator in the general tenor of the instrument, and to sacrifice to the scheme of disposition so disclosed any incongruous words and phrases which have found a place therein.’ ”

We deem it unnecessary to discuss subpar. 9 of par. VII of the will since the relief sought in plaintiffs’ amended complaint was not in anywise predicated on same and neither was it relied upon in the trial court as furnishing any basis for relief. Furthermore said subpar. 9 could not possibly aid in the proper construction of the will.

As heretofore shown the question of acceleration of the distribution of the trust estate is no longer in the case by reason of the death of Florine Mix, the testator’s widow.

The only remaining question concerns the matter of attorneys’ fees and expenses allowed the various parties to this cause. We have carefully examined the evidence in the record as to the nature and extent of the legal services rendered to the respective parties and the necessity for such services. We think that Clarence S. Haas, conservator of the estate of May M. Jackman, incompetent, her children, C. Houlton Jack-man and Margaret Jackman Borland, the cotrustees of the testamentary trust in question and George W. Dammann, trustee for persons not in being, are entitled to the attorneys ’ fees and expenses allowed them by the decree and that such allowances are reasonable.

Appellants, however, strenuously insist that since this suit was filed by plaintiffs solely for the purpose of attempting to enforce a supposed interest of their own, they are not entitled to attorneys’ fees or expenses. While the law is well settled in this State that when the construction of a will is not necessary, those who file a suit for construction to enforce a supposed interest of their own are not entitled to attorneys ’ fees or expenses out of the estate if they are ultimately held not to have any interest (Bartlett v. Mutual Ben. Life Ins. Co., 358 Ill. 452; Brumsey v. Brumsey, 351 Ill. 414; Village of Hinsdale v. Chicago City Missionary Society, 375 Ill. 220; Waxenberg v. Brown, 299 Ill. App. 225; Moody Bible Institute of Chicago v. Pettibone, 289 Ill. App. 69), the law is also well settled that when there is sufficient ambiguity in regard to the testator’s intention as expressed in his will as to make it necessary to go into a court of chancery to get a construction.of the will in order to determine which of two or more adverse claims to the same property is valid, the costs of the litigation should be borne by the fund or property in question even though the will is ultimately construed adversely to the contention of plaintiffs. In Guerin v. Guerin, 270 Ill. 239, the court said at pp. 250, 251:

“It is the settled law of this State that where a will is so ambiguous or uncertain as to require construction, the costs and expenses of the proceeding to construe, including reasonable fees for complainant’s solicitors, should be taxed against and paid by the estate. '

. “The case of Ingraham v. Ingraham, 169 Ill. 432, was one brought to construe a will, and, though the court below construed the will adversely to the contention of the complainant, an allowance was made as fees to the solicitor for complainant, and in passing upon that case this court said: ‘In view of the ruling of this court in Woman’s Union Missionary Society v. Mead, 131 Ill. 338, we do not regard the allowance of the fee as erroneous. The bill, as amended, asked for a construction of the fourteenth clause. There is sufficient ambiguity about the language of the testator to justify an application to a court of equity for a construction of the clause in question. It is a general rule that when the testator has expressed his intention so ambiguously as to create a difficulty, which makes it necessary to go into a court of chancery to get a construction of the will and to remove the difficulty, the costs of litigation must be borne by the estate, and the general residue is the primary fund for the payment of such costs.’ ”

(To the same effect are Kendall v. Taylor, 245 Ill. 617; Board of Administration v. Stead, 259 Ill. 194; Dean v. Northern Trust Co., 266 Ill. 205; McCormick v. Hall, 337 Ill. 232; Schneller v. Schneller, 356 Ill. 89.)

While we have construed the will adversely to plaintiffs’ contentions we think that there was sufficient ambiguity about the language of the testator to justify their application for construction.

Thus while plaintiffs are entitled to have their attorneys’ fees and expenses in a reasonable amount paid out of the trust estate, we are of opinion that the allowance to them by the chancellor of $20,000 attorneys’ fees was grossly excessive. In view of plaintiffs’ admission that a large part of the legal services rendered to them by their attorneys was in connection with the second count of their complaint, which as heretofore shown was abandoned upon the trial of this ‘cause, we think that under all the circumstances $5,000 is a reasonable allowance for plaintiffs’ attorneys’ fees. Plaintiffs are also entitled to receive the expenses allowed them by the trial court.

We are impelled to hold that under the last will and testament of Henry A. Mix, properly construed, plaintiffs, the children of Sarah Ives, are not entitled to receive any share of the trust estate in question and that the entire trust estate should be forthwith transferred, assigned and delivered by the surviving trustee to Clarence S. Haas, conservator of the estate of May M. Jackman, incompetent.

The questions raised by the appeal of the cotrustees, the cross-appeal of Dammann, trustee for persons not in being, and the cross-appeals of plaintiffs, having been answered by what has already been said, it is unnecessary to discuss same.

For the reasons stated those portions of the decree of the circuit court of Cook county which allowed plaintiffs one half of the trust estate and $20,000 attorneys’ fees are reversed, the decree is in all other respeéts affirmed and the cause is remanded with directions that a decree be entered in conformity with the views herein expressed.

Decree affirmed in part, reversed in part and cause remanded with directions.

Friend and Scanlan, JJ., concur.