text:
    Dorothy Macks, Appellant, v. Mitchell C. Macks and Bernice Macks, Appellees.
    Gen. No. 43,536.

      Opinion filed May 29, 1946.
    Released for publication June 13, 1946.
    Rappaport, Clorfene & Rappaport, of Chicago, for appellant; Ode L. Rankin, of Chicago, of counsel.
    Mitchell C. Macks, pro se.

   Mr. Justice Sullivan

delivered the opinion of the court.

This is an action in detinue brought by Dorothy Macks to recover from the defendants, Mitchell C. Macks and Bernice Macks, two diamond rings or the value thereof; A judgment order was entered awarding a summary judgment against plaintiff and in favor of defendants on their petition and supporting affidavits and denying plaintiff’s motion for a summary judgment against the defendants. Plaintiff appeals from said judgment order.

Plaintiff’s complaint alleged that she “is the owner and entitled to the possession” of two diamond rings, the value of one of them being $900 and of the other $550; and that “on or about the 17th day of October, 1944, the defendant, Mitchell C. Macks, became possessed of the said property by illegally coercing the plaintiff herein into surrendering the said possession, without any consideration therefor, and that both the said defendants now wrongfully detain the same from the said plaintiff, although the plaintiff has made demand for the return of the said property.”

The complaint concluded with the prayer that judgment be entered against the defendants for the return of the rings to plaintiff or, in the alternative, that judgment be entered against defendants for $1,450, the value of said rings, and for $1,000 damages for their unlawful detention. Upon the filing of plaintiff’s complaint she also filed a demand for a jury trial.

Defendants’ motion to dismiss the complaint was denied on May 28, 1945 and they were allowed 30 days within which to file their answer. Defendants did not file an answer but filed instead a sworn petition for summary judgment on June 5, 1945.

They alleged in said petition that plaintiff is the former wife of the defendant, Mitchell C. Macks, and that he gave her the two rings in question in June 1939; and that on February 21, 1944 a decree was entered by the superior court of Cook county granting plaintiff a divorce from Macks.

A certified copy of said decree was attached to and made a part of defendants’ petition. Reference to such decree discloses that Dorothy Macks, the plaintiff herein, was granted a divorce from Mitchell C. Macks on her complaint that he was guilty of extreme and repeated cruelty, that she was awarded the custody of the two and one half year old child of the parties, Macks being given the right of visitation at reasonable times, that he was directed to pay $10 per week for the support of the child and that “the plaintiff and the defendant waive any and all claims for attorney’s fees and for alimony, past, present and future, that they may have against each other, and the plaintiff and defendant further waive any and all claims for property rights that they may have against each other.” The decree concluded with this provision: “It is further ordered, adjudged and decreed that the defendant, within thirty days from the entry of this decree, is to take the necessary action and to effectuate with the plaintiff a Gfeht, or Jewish Divorce, and that the defendant is to pay all costs necessary for the obtaining of said Q-eht, or Jewish Divorce.”

Over their signatures, Mitchell C. Macks and Dorothy Macks indicated on the face of the decree of divorce their consent to the provisions thereof as follows:

“We, the undersigned, hereby approve all the terms and conditions of the above Decree.

Mitchell C. Macks

Dorothy Macks.”

Defendants’ petition for summary judgment also alleged that on April 5, 1944 plaintiff applied to the superior court for the issuance of a contempt rule against Mitchell C. Macks because of his failure to consummate the Jewish divorce in accordance with the provisions of the divorce decree; that plaintiff’s petition for said rule was denied on the ground that the court “has no jurisdiction to compel him [Macks] to grant or effectuate with the plaintiff a Jewish Divorce or Geht”; that on October 15,1944 in plaintiff’s home, she and Macks agreed that in consideration of his arrangement with Rabbi Joseph Segal for a Jewish divorce, she would return to him the rings involved herein; that Macks did arrange with Rabbi Segal to have a Jewish divorce consummated in the latter’s home on October 17, 1944; that on said date at the home of Rabbi Segal and in the presence of Rabbi Joseph Segal, Rabbi Eli Regensberg, Rabbi Paley and the attorney for Dorothy Macks, she “gave, returned and transferred” the two rings to defendant; that immediately thereafter “proceedings were commenced for the said Jewish Divorce or G-eht as more fully described in Exhibit C attached hereto”; and that defendant paid Rabbi Segal $50 for all costs of the Jewish divorce proceedings.

Exhibit 0 is an affidavit by Rabbi Eli Regensberg, which sets forth in substance that at the behest of Mitchell C. Macks he sat as a member of a tribunal composed of Rabbi Joseph Segal, Rabbi Wolf Paley and himself at the home of Rabbi Joseph Segal on October 17, 1944 for the purpose of consummating a J ewish divorce or G-eht of Dorothy Macks from Mitchell C. Macks and that there were also present at that time Dorothy Macks, Mitchell C. Macks and Melvin Kanter, Dorothy Macks’ attorney; that at that time and place “we and each of us heard Dorothy Macks tell Melvin Kanter to give to Mitchell C. Macks two diamond rings ’ ’; that thereupon Attorney Kanter handed to Macks one lady’s diamond wedding ring and one lady’s diamond engagement ring; that Dorothy Macks “saw Mr. Kanter handing the said rings” to Macks; that at no time did Dorothy Macks make any objection or register her disapproval; that before the Jewish divorce proceedings were started and again at the conclusion thereof Dorothy Macks was asked by the Rabbis whether she had any claim against Macks “for monies, personal property or jewelry” and she answered in the negative; and that the members of the tribunal signed the decree, it was handed to Dorothy Macks and the J ewish divorce was thereby consummated.

Defendants’ petition for summary judgment then alleged that Bernice Macks, the present wife of Mitchell C. Macks, has the two rings in her possession and that they were given to her by him as a wedding gift on October 28, 1944; and that “a good and sufficient legal consideration as hereinabove mentioned was given by your petitioner to the plaintiff herein to support the return of the two diamond rings. ’ ’

Plaintiff’s motion to strike defendants’ petition for summary judgment was denied.

Dorothy Macks’ counter affidavit alleged in sub-, stance that the rings in question “were her engagement and wedding rings, respectively, given to her by the defendant, Mitchell 0. Macks, prior to and at the time of their marriage”; that a decree was entered in the superior court on February 21, 1944 in which Macks “was found guilty of extreme and repeated cruelty” and a divorce granted to her from him; that one of the terms of said decree, which was approved by both parties on the face thereof, was that “plaintiff waive any and all claims for attorney’s fees, alimony, past, present and future”; that “another provision of said divorce decree which was approved by this defendant, Mitchell C. Macks, provided that within thirty days from the entry of the decree the defendant, Mitchell C. Macks, would take the necessary action to effectuate a'Jewish Divorce or G-eht”; that the foregoing provisions of the decree, “in reality, incorporated the property settlement between the parties, coincidental with the said divorce”; that Judge Sbar-boro refused to compel Macks to carry out his agreement as embodied in the divorce decree to effectuate the Jewish Divorce “because the essence of the said Jewish or ceremonial divorce is freedom from compulsion of any kind or description”; and that at the time of the entry of said order by Judge Sbarboro “the decree had been in effect for forty-three days and was not subject to attack except by Bill of Review and that all of the provisions of the said decree in which the aforementioned agreement of the parties thereto are embodied remain in full force and effect.”

Plaintiff’s counter affidavit then proceeded as follows :

“Affiant denies that on October 15th, 1944, she agreed with the defendant, Mitchell G. Macks, to return the aforementioned rings to the said defendant, Mitchell 0. Macks, in consideration of the said defendant’s arrangement for a Jewish Divorce, but states the fact to be that on October 17th, 1944, the defendant, Mitchell C. Macks, coerced your affiant into giving the said rings to him as a condition precedent to performing an act which he had previously agreed to do for a valuable consideration of plaintiff’s waiver of alimony and valuable property rights, as embodied in the aforementioned Divorce Decree.

“Affiant further denies that she failed to register any disapproval at the time of the handing of the said rings to the said defendant, Mitchell C. Macks, but states that, on the contrary, she stated in an emphatic manner that the rings were being obtained by the said defendant, Mitchell C. Macks, under the aforedescribed compulsion, and denies that she ever stated that she had no claims for moneys, personal property or jewelry, as alleged in the affidavit of Rabbi Eli A. Regensberg.

“That the obtaining of the aforementioned personal property as a condition of said Jewish Divorce is contrary to all of the doctrines of the aforementioned religion and that the defendants herein hold the property of your affiant without any legal consideration or right. ’ ’

While a Jewish divorce has no legal effect under our State law, it is highly important to the woman involved and is a matter that deeply concerns her future welfare. Mitchell C. Macks and Dorothy Macks were of the Jewish faith and according to Jewish custom she was precluded from remarrying in accordance with her religious beliefs, unless she obtained a Jewish divorce from her former husband. This custom only applied to the former wife, the former husband being free to remarry without the procurement of a Jewish divorce and proceedings for the consummation of such divorce could be initiated only by the former husband.

There can be no question but that there were triable issues of fact raised by the sworn pleadings and affidavits filed herein. Plaintiff’s complaint averred that the rings belonged to her, that Macks secured possession. of them without any consideration and that he and his present wife wrongfully detain said rings. Defendants ’ petition for summary judgment admitted that plaintiff owned the rings but asserted as their defense to plaintiff’s claim that she agreed to turn them over to Macks in consideration of his undertaking to procure a Jewish divorce and that she voluntarily delivered the rings to him immediately prior to the commencement of the Jewish divorce proceedings. In plaintiff’s counter affidavit she specifically denied that she entered into any agreement with the defendant to turn her rings over to him and asserted that he secured them without consideration and that she did not deliver them to him voluntarily but only because defendant demanded them as a condition precedent for his participation in the Jewish divorce proceedings.

The purpose of a summary judgment proceeding is not to try an issue of fact but to ascertain whether there is an issue of fact to try. The trial court could not under the law determine the truth of defendants’ sworn petition for summary judgment, since “the truth or falsity of facts disclosing a legal defense must be decided by a jury.” (Diversey Liquidating Corp. v. Neunkirchen, 370 Ill. 523.) In Soelke v. Chicago Business Men’s Racing Ass’n, 314 Ill. App. 336, it was said (p. 338): “It is elemental that a motion [for summary judgment] under Section 57 of the Civil Practice Act is not intended to be used as a means of trying an issue of fact. When there is such an issue defendant has the constitutional right to have it tried by a jury. ’ ’

Macks certainly has no right to be paid twice by plaintiff for the same consideration — Ms promise to procure a Jewish divorce. Under the terms of his agreement with plaintiff settling their property rights, wMch terms were incorporated in the decree of divorce with Ms consent and approval, he undertook to procure a Jewish divorce in return for plaintiff’s waiver of alimony and attorney’s fees. Now we find him in the instant case claiming that plaintiff agreed to deliver her rings to him for the same identical consideration— his promise to procure a Jewish divorce. The law is firmly established that a promise to do something that one is already obligated to do is no consideration and creates no new obligation. (17 C. J. S. 465, sec. 112.) Therefore, even though plaintiff made the alleged agreement with Macks concerning her rings and delivered them to him pursuant to said agreement, there was no consideration on his part for such agreement, since he was already obligated under the terms of the divorce decree to procure the Jewish divorce in return for plaintiff’s waiver of alimony and attorney’s fees.

Macks seeks to avoid the effect of the foregoing rule of law by insisting that the provision in the divorce decree requiring him to procure a Jewish divorce was void. The fact that Judge Sbabboro held that he could not compel Macks to initiate and personally participate in a religious ceremony did not impair the force' and effect of his obligation to comply with his agreement to procure a Jewish divorce in return for plaintiff’s waiver of alimony and attorney’s fees. Said obligation was of continuing effectiveness until it was fulfilled and it was just as binding on him at the time he claims plaintiff agreed to turn her rings over to him and at the time he received them from her as it was on the date of the entry of the divorce decree.

Since it appears from defendants’ petition for summary judgment that Mitchell 0. Macks gave no consideration for plaintiff’s rings, said petition is insufficient in that it states no legal defense to plaintiff’s claim. The defendant, Bernice Macks, admittedly has possession of the rings as the donee of her husband and since he had no title to them at the time he gave them to her as a gift, it follows that she has no title to the rings or right to retain them.

Plaintiff urges numerous other points for reversal but in the view we take of this case we deem it unnecessary to discuss them.

We are impelled to hold that the trial court erred in entering a summary judgment in favor of the defendants and against plaintiff.

For the reasons stated herein the judgment order of the trial court is reversed in its entirety and the cause is remanded with directions to allow defendants to file an answer to plaintiff’s complaint within a reasonable time, if they see fit to do so, and that such further proceedings be had as are not inconsistent with the views herein expressed.

Judgment order reversed and cause rema/hded with directions.

Friend, P. J., and Scanlan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Sullivan

license: Public Domain

text:
    People of State of Illinois, Plaintiff in Error, v. Herman Hardt, Ronald Laycock and Carl Ahrenstedt, Defendants in Error.
    Gen. No. 43,576.

      Opinion filed May 29, 1946.
    Rehearing denied June 12, 1946. Released for publication June 13, 1946.
    William J. Tuohy, State’s Attorney, for plaintiff in error; Edward E. Wilson, John T. Gallagher and W. S. Miroslawski, Assistant State’s Attorneys, of counsel.
    Thomas J. Cavanagh, of Chicago, for defendants in error; Ode L. Rankin and Robert G. Corbett, both, of Chicago, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

This writ of error is prosecuted by the People of the State of Illinois to review an order of the criminal court of Cook county which quashed the second count of an indictment charging the defendants in error with malicious mischief. Said count charged the defendants with unlawfully and maliciously injuring and defacing a certain dwelling house located at 635 Sheridan road, Glencoe, Cook county, Illinois, by “removing certain molding from a wall of the living room of said buildr ing, and by then and there removing certain pins from a certain door between said living room and the dining room of said building, and by then and there pulling a certain panel away from a wall of a certain room of said building,” the damage resulting therefrom being less than $15, which building was “occupied by, and in the lawful possession of and under the control of Hamilton Moses, Junior, and Betty anne T. Moses, (who then and there were lessees of said building and then and there as such lessees had the right of possession of said building,) . . . without then and there having the consent of said Hamilton Moses, Junior, and Betty anne T. Moses, and without then and there having the consent of either of them . . . contrary to the Statute . . . .” The indictment was drawn under section 192 of the Criminal Code (par. 425, ch. 38, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 37.378]), the pertinent portion of which is as follows: “Whoever wilfully and maliciously destroys, injures or defaces any building or fixture attached thereto, without consent of the owner, . . . ” shall be punished as therein provided.

Defendants’ motion to quash asserted the following grounds:

“That in and by Count 2, it is charged that the defenders were guilty of feloniously, wilfully, mischievously and maliciously injuring and defacing a building, but there is no allegation in said Indictment that their said actions were without the consent of the owner of the property.

“It does not appear from the face of Count 2 of the Indictment who was the owner of said property.

“Wherefore, defendants say that the said Count 2 of said Indictment fails to state an offense within the meaning of the Statute, and that the said defendants should not be required to answer the same. ’ ’

The theory of plaintiff in error is that the meaning of the word “owner” as used in the statute defining the crime of malicious mischief is sufficiently comprehensive to include therein the qualified ownership of the tenants in possession of a building under a lease, that the qualified ownership of the prosecuting witnesses in the instant case who occupied the premises as lessees brought them within the purview of said statute and that the charge in the second count of the indictment that the acts of destruction were maliciously committed without said lessees’ consent constituted a sufficient charge that such acts were committed without the owner’s consent.

The position of the defendants in error is that “in pleading a charge of malicious mischief to a building, the pleader must charge specifically or in equivalent language that the owner gave no consent to do the acts charged to be malicious”; and that “the word ‘owner’ as used in the Statute in question means owner in fee simple, and the indictment, containing no allegation that the acts charged were done without consent of the owner, omits an essential element of the crime and it was properly quashed.”

The real question presented for our determination is whether the trial court erred in holding that count 2 of the indictment was insufficient to charge the crime of malicious mischief, because said count alleged that the defendants’ acts of destruction were committed by them without the consent of the tenants in possession of the building under a lease rather than without the consent of the owner in fee simple of such premises. Insofar as we have been able to ascertain this precise question has not heretofore been considered or determined by any court of review in this State.

Whether count 2 of the indictment is sufficient depends entirely upon the meaning of the word “owner” as used in the foregoing statute defining the crime of malicious mischief. Plaintiff in error insists that the word “owner” as used in said statute is sufficiently comprehensive to include therein the qualified ownership of tenants in possession of a - building under a lease. The position of defendants in error is that the statute under which the indictment was drawn must be strictly construed and that the word “owner” as used therein can only mean the owner in fee simple.

While it is true that penal and criminal statutes must be strictly construed and any ambiguity therein resolved in favor of the accused, we think that the term “owner” as used in the statute under consideration was intended to include the qualified ownership of a tenant in control and possession of a building destroyed or injured by malicious acts; In People v. Lund, 382 Ill. 213, it was said (215): “The object in construing criminal and penal as well as all other statutes is to ascertain the legislative intent. The rules as to strict or liberal construction are of value only as assisting in finding the real meaning of the statute. ’ ’

Section 6 of the Criminal Code (par. 716, ch. 38, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 37.691]) provides as follows:

“Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language of the statutes creating the offense, or so plainly that the nature of the offense may be easily understood by the jury.”.

There can be no question but that the second count of the indictment stated the charge against the defendants “so plainly that the nature of the offense” might be easily understood by a jury. The word “owner” has been variously defined. In Arms v. Ayer, 192 Ill. 601, in construing certain provisions of the Fire Escape Act (Laws of 1897, p. 222) the court said at pp. 615, 616: “It has been held that the term ‘owner’ in similar statutes, does not mean the owner of the fee, but may mean the lessee in actual possession and control of the building.” In Coombs v. People, 198 Ill. 586, it was said at p. 588: “The word ‘owner,’ as applied to land, has no fixed meaning which can be declared to be applicable under all circumstances and as to any and every enactment. It usually denotes a fee simple estate, but it has been defined to include one who has the usufruct, control or occupation of land with claim of ownership, whether his interest be an absolute fee or less estate (17 Am. & Eng. Ency. of Law, 1st Ed., 299-300).” In reference to indictments for malicious mischief it is stated in 38 O. J., Sec. 11: “Asa general rule, under the statutes, while the person injured must have right of property, it is not necessary that the legal title be in him, and it usually is sufficient that he has a right of possession, although only temporary.”

We have carefully examined the authorities cited by defendants in support of their position that the word “owner” as used in the statute involved herein can only mean the owner in fee simple and that count 2 of the indictment was fatally defective because it did not charge that the alleged acts of destruction were committed without the consent of the owner in fee simple. Inasmuch as we do not consider said authorities applicable to an indictment charging the offense of malicious mischief in respect to a building, it would serve no useful purpose to discuss them.

A “lease” is a conveyance of an estate in real property (In re Barnett, 12 F. (2d) 73; Minneker v. Gardiner, 47 Ohio App. 203, 191 N. E. 793; Brenner v. Spiegle, 116 Ohio St. 631, 157 N. E. 491.) The possession of the tenant is in law the possession of the landlord. (Phelps v. Kroll, 211 Iowa 1097, 235 N. W. 67; Powers v. Malavazos, 25 Ohio App. 450, 158 N. E. 654; McWhorter v. Oliver (Tex. Civ. App.), 2 S. W. (2d) 281.) The title to a leasehold estate which a lessee has during the life of a lease is equivalent for all practical purposes to absolute ownership. (Baker v. Clifford-Mathew Inv. Co., 99 Fla. 1229, 128 So. 827.)

In People v. Horr, 7 Barbour’s Sup. Ct. Reps. (N. Y.) 9, where the sufficiency of an indictment charging malicious mischief was challenged, the court said:

“It is a general principle that possession is evidence of ownership, both real and personal property; and is conclusive evidence against a wrongdoer. (Cowen & Hill’s Notes, 353.) ‘And the same principle applies to criminal as well as civil cases.’ And Mr. Phillips (1 Phil. Ev., 118, 119) gives many cases in illustration of this rule. It is not denied that the prosecutor must prove the title to the property described in the indictment as he had laid it; and he does so when he gives evidence of possession. That alone is evidence of a special or qualified property, which is sufficient to uphold an averment of ownership, in a civil or a criminal case. In a civil action, when the direct issue is on the title, and the question is which party has the better title, the defendant may rebut the prima facie evidence arising from possession and show a superior right in himself. Not so in the case of wrongdoer.”

In State v. Mathes & Mills, 3 Lea (Tenn.) 36, the court said at pp. 36, 37:

“These indictments were quashed in the court below, and the State appeals. They charge the parties with wantonly defacing and otherwise injuring the dwelling house owned by-but occupied at the time by C. C. Spears as a dwelling house, by throwing rocks, sticks and other missiles through windows of the same.

“The indictment was quashed because it failed to state the name of the owner of the house. Section 4652, Code, makes it a misdemeanor to wantonly injure, deface or disfigure any building or fixture attached thereto, or the inclosures thereof, belonging to the State, or any county, city, town, or to any other person.

“We think the question of ownership, that is, the legal title, is of very little importance as an element in this offense. It is the wanton injury to property of this kind that is intended to be punished, and this wrong, perpetrated against the possession of the party in this case, is as great as if it had been averred to have been done against the party holding the legal title. . . . We think the allegation of temporary occupation as a dwelling’ in this case, is a sufficient statement of ownership under the statute. ’ ’

In State v. Whittier, 21 Maine 341, there was a conviction under a statute which provided that “if any person shall wilfully and maliciously injure or destroy any building without the consent of the owner thereof, ’ ’ he may be punished by fine or imprisonment. That statute is practically identical with ours. The following statement of facts preceded the opinion of the court: ‘ ‘ The first count alleged that the defendant on the 20th of April, 1841, beat in the windows and broke the glass of a building, being* a dwelling house, the property of one David" W. Jackman, and that said Whittier had not the consent of the owner of said house for the doing said injuries. . . . The county attorney admitted, that both counts were for the same offense. The only evidence adduced in relation to the ownership of the said house was that of said Jackman, who was a witness for the State, and who testified that he hired said house by parol . . . for one year, not then expired, and was occupying the same under that letting, when it was injured as aforesaid. The defendant requested the Judge to instruct the jury, that it was not proved, that said house was the property of said Jackman; but the Judge did instruct the jury, that if said Jackman’s testimony was believed, he was the owner of said house, and that the proof aforesaid was sufficient to show that fact for the purposes of this indictment.”

In holding in that case that a tenant may be considered an “owner” within the meaning of the statute of Maine relating to malicious mischief to buildings, the court said at p. 346:

“The testimony proved that Jackman was in possession of the house under a parol agreement to occupy it for one year, when the same was injured. It is contended, that this was not sufficient proof of the allegation in the indictment that Jackman was the owner. The rule of law appears to be, that possession is sufficient evidence for that purpose, unless it be that of a servant merely, who is occupying as such for another. ’ ’

As to the Horr case it is asserted in defendants’ brief that the case “does not indicate that an indictment in a matter of this sort is sufficient if there is no allegation whatever as to the ownership” and it is asserted as to the Whittier case that plaintiff in error “wholly fails to distinguish between the entirely distinct problems of what must be alleged in an indictment charging an offense, on the one hand, and what evidence is sufficient to prove this allegation, on the other hand.” "We think both of these contentions are lacking in merit. If as was held in the Horr and Whittier cases, a tenant may be considered an ‘ ‘ owner’ ’ within the meaning of statutes similar to ours relating to malicious mischief to buildings, it necessarily follows that the building in this case was properly laid in count two of the indictment as that of the tenants and that said count was not defective because the acts of destruction were alleged to have been committed without the consent of the tenants. In section 23 of 38 C. J., which deals with the questions of ownership and possession in indictments for malicious mischief, it is stated: “As the gravamen of the offense is usually an attempt to injure either the owner or possessor of the property destroyed or injured, it is sufficient to lay the ownership to the person in possession at the time of the offense.” In State v. Gilligan, 23 R. I. 400, 50 Atl. 844, where the defendant was found guilty of malicious mischief as charged in an indictment, the court said at p. 845:

“There is no question but that had the building in this case been laid in the indictment as that of the lessee, the allegation would have had the support of abundant authority .... ‘ Ownership, ’ says Bishop in his work on Criminal Procedure (Vol. 2, sec. 137,138), ‘is one thing in one offense and another thing in another .... In general possession and occupancy by the alleged owner are all that are required. While he need not own the fee, he need not even pay rent. It is enough that it was his actual dwelling house at the time. Even a possession unlawful as against the person claiming title, but lawful as against the burglar, will suffice. ’ ’ ’

It is well to call attention to certain established rules relative to the construction of indictments. In People v. Grigsby, 357 Ill. 141, the court said (p. 147): “This Court is not inclined toward so technical a construction of an indictment as to serve as a protection for the guilty rather than a defense for the innocent.” In People v. Cohen, 303 Ill. 523, it was said (p. 525),: ‘ ‘ Great niceties and strictness of pleading should only be countenanced and supported when it is apparent that the defendant may be surprised on the trial, or unable to meet the charge or make preparations for his defense for want of greater certainty or particularity.” “An indictment should not be quashed if it charges the offense substantially in the language of the Statute or in language of similar import.” Hall v. State, 90 Fla. 719, 107 So. 246. In Lamb v. State, 90 Fla. 844, 107 So. 530, it was stated (p. 531): “It cannot be said that the indictment in this case is so vague, inconsistent, and indefinite as to mislead. the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.”

The offense charged in count 2 of the indictment in the instant case was clearly defined and described. It cannot be said that the defendants might be surprised and unable to meet the charge or that there was any allegation contained in said count that might mislead the accused and embarrass them in the preparation of their defense or expose them after conviction or acquittal to substantial danger of a new prosecution for the same offense.

We are of the opinion that the term “owner” was used in the statute in question here in a comprehensive rather than a restricted sense, that the tenants in possession and control of the premises may be considered as “owners” within the meaning of said statute, that count 2 of the indictment charged all of the essential elements of the offense substantially in the language of the statute and that the trial court erred in ordering said count quashed.

For the reasons stated herein the order of the criminal court of Cook county quashing count 2 of the indictment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Order reversed and cause remanded.

Friend, P. J., and Scanlan, J., concur.


author: Mr. Justice Bristow

text:
    Lena Ritter, Administrator of Estate of William Ritter, Deceased, Appellant, v. William Nieman, Appellee.
    Gen. No. 10,061.

      Opinion filed June 14, 1946.
    Released for publication July 2, 1946.
    Thomas H. Hicks, of Warren, and Albert H. Manus, of Freeport, for appellant.
    Burrell & Burrell, of Freeport, and Louis A. Nack, of Galena, for appellee; David M. Burrell, of Freeport, of counsel.
   Mr. Justice Bristow

delivered the opinion of the court.

Lena Bitter, administratrix of the estate of William Bitter, deceased, brought this suit against William Nieman, defendant appellee, for damages for the benefit of the widow and next of kin of the said William Bitter, deceased. The death of William Bitter on July 8, 1942 was the result of a collision of an automobile in which Bitter was riding and a truck being driven by William Nieman on July 4, 1942 in Thompson Township, Jo Daviess County, Illinois.

The complaint filed by Lena Bitter consisted of two counts, one charging ordinary negligence and the second wanton and wilful misconduct. At the close of all the evidence, a motion was filed by the defendant for a directed verdict on both counts which was allowed, and, after a motion for a new trial was overruled and a - judgment was entered on said verdict in favor of the defendant and against the plaintiff, this appeal followed.

At about 6:15 a. m., July 4,1942, William Bitter was riding to work in his own automobile sitting at the side of Chester Atz who was driving the car. Besides these two occupants of the front seat of the car, there were in the rear seat Glenn Smeck on the right side, George Sigafus in the middle, and his wife on his left, and on the laps of Mr. and Mrs. Sigafus were their two children a boy and a girl of the age of 7 and 4 respectively. These men were all employed at Savanna, Illinois, in an ordnance plant, and, at the time of the occurrence in question, were enroute to work. The car, which was a Ford V-8, was proceeding southward on the state aid road which commences a little southwest of Apple Biver and proceeds in a southerly direction. The defendant and all of the occupants of the car, with the exception of the children, testified as to the occurrence.

Orville Hess, a road maintenance patrolman, testified concerning the physical situation that existed on the highway where the accident happened, as follows: The north and south state aid road is gravel surfaced with a roadbed of 20 feet. The distance from fence line to fence line is 75 feet. Coming into this through or preferred highway from the west was a narrow road on which the defendant had lived for many years. Eight feet west of the west line of the gravel road was a large oak tree which stood exactly in the center of the east and west road, and to enter the north and south highway there were lanes going to the right and left of this tree. If one should take the road to the south of the tree and continue eastward across the highway, he would enter a lane on the east side of the state aid road which is not a public highway. The defendant on the morning of the accident proposed to enter this lane to take care of some livestock. Bight feet west of the tree was a “stop” sign of the usual dimensions. The roadway of the intersecting highways was smooth and level. At the northwest corner of the intersection, the fence rows were grown up with shrubbery and vegetation and obstructed the views of the occupants of both involved vehicles. The defendant was driving alone in his Chevrolet pickup truck. Dr. Karl B. Bieger, a practising physician and surgeon of Freeport, Illinois, testified that he attended Mr. Bitter at the St. Francis Hospital of Freeport on July 4, 1942, and that his examination-revealed that he had many contusions and bruises, and that there were eleven fractured ribs, one of which had punctured a lung. Pneumonia developed from this puncture, and caused his death on July 8, 1942.

The trial court in allowing the defendant’s motion for a directed verdict at the close of all the evidence, stated in his oral opinion that the plaintiff had presented no evidence that the deceased was in the exercise of due care at the time of the accident. Whether or not this determination is sound is our problem. Let us examine the testimony of the various occurrence witnesses.

Glenn Smeck testified that at the point of the collision, “All at once we was struck;” “That’s all I remember about it;” “In my opinion the car was traveling about thirty-five miles per hour.” He further said that after they were struck, the car rolled over several times, and that he was knocked out. He also testified that just before the accident happened, he heard Bitter say, “Look out”; that they were struck in the rear at a point just about where he was sitting; and that he was only slightly injured.

George Sigafus testified as follows: “I don’t know much about the accident, to tell the truth, because it came so quick”; I didn’t see much because at the time I was getting a cigarette out of my pocket”; that the accident occurred by the big tree; that their car was about four feet north of the intersection when it was hit, traveling between 40 afid 45 miles per hour; that after the impact it went from 50 to 100 feet and wound upon him, injuring his knee; and that the front bumper on Mr. Nieman’s truck was broken,

Mrs. George Sigafus testified: “All that I can tell is that I seen just the front fender of the car come down the side road, and just that quickly we was hit and that’s all I can remember”; that when their car was hit it was south of the tree and in the graveled portion of the roadway; that Mr. Bitter was thrown out of the car and lay 10 feet south of where it stopped.

Chester Atz testified that he had been doing the driving of the Bitter ear for about 10 days; that he was quite familiar with the territory and had driven down this road many times; that on the morning in question it was daylight with a cloudy overcast; that “We were going by the intersection where the tree sets out and someone hollered just as we were passing it, that there was a car and I looked to my right and saw that there was a car there, and I thought maybe we could clear it if I stepped on the gas and just about that time the crash occurred”; that after the crash the car seemed to swerve toward the ditch and rolled over on its side and skidded down the highway about 75 feet; that their car was struck in front of the rear right fender and that their car was traveling between 40 and 45 miles per hour; that Mr. Bitter was taken to the Nieman home after the accident.

The defendant was called under section 60 of the Practice Act [Ill. Rev. Stat. 1945, ch. 110, par. 184; Jones Ill. Stats. Ann. 104.060], and testified as follows: that, he is 55 years, of age and has lived on the side road about one- quarter mile west of the intersection for more than 30 years; that that-road is about 40 feet wide from fence to fence; that traveling from his home to the state aid road, he went about 10 miles per hour ; that he was going into a lane on the east side of the road; that there is a gate there which was open; that he had crossed this highway on the average of twice daily; “that as I drove into the state aid road that morning I was on the south side of it. There is a track for traffic on the south side of the tree, and also one on the north side of the tree which goes onto the state aid road”; that Sheriff Lloyd was at the scene of the accident shortly after the accident but I don’t remember telling him that I did not stop upon entering the highway; that he stopped right there at the “stop” sign; that he looked right and left a few seconds to see whether the road was clear; that he could see up the road six to eight hundred feet; that when he stopped his truck, he was west of the oak tree about eight feet; that the front end was right at the ‘ ‘ stop ’ ’ sign, ‘1 and then I went onto the state aid road, and I hit the Bitter car from its right side, pretty well to the rear end of it. It was right in front of me. I didn’t see it until I hit it”; that at the time of the impact he was traveling only two or three miles per hour. Then the defendant when called on defense, testified that from where he was sitting in his car to the west edge of the gravel road, it was 28 to 30 feet; “I seen that car coming right in front of me and I stopped. I saw the Bitter car practically just as soon as the impact”; that the weather was cloudy but the visibility was good; and that he didn’t hear a horn blown. Sheriff Lloyd testified that he was called to the scene of the accident, and had a routine conversation with Mr. Nieman for the purpose of obtaining information for his report of the accident; that he asked Mr. Nieman if he had stopped and he said he didn’t; that the skidmarks of the automobile showed down the road for two to three hundred feet, however he had not made a measurement of them.

The appellee argues here that the trial court erred in permitting the sheriff to testify to the admission that the defendant made at the scene of the accithat he failed to stop before entering the highway in question. To support this contention he cites par. 141, ch. 95½, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 85.173] which reads as follows: “All required accident reports and supplemental reports shall be without prejudice to the individual so reporting and shall be for the confidential use of the department except that the department may disclose the identity of a person involved in an accident when such identity is not otherwise known or when such person denies his presence at such accident. No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident, except that the department • shall furnish upon demand of any person who has, or claims to have made such a report, or upon demand of any court,' a certificate showing that a specified accident report has or has not been made to the department solely to prove a compliance or a failure to comply with the requirement that such a report be made to the department.” Here there was no such report offered in evidence. The statute specifically enjoins the use of the report in a civil or criminal trial. For this court to hold that a party making such report could not testify to “admission against interest” made by a party to an accident, would extend the language of the statute to include prohibition not contained therein. If on this trial appellant had sought to introduce in evidence the sheriff’s report, it would have been inadmissible under this statute. We do not believe the trial judge erred in this ruling.

It is the contention of the defendant appellee that since the driver of the car, Atz, did not look and that deceased failed to see the approach of the defendant’s truck in due time to give him ample warning, that this constituted contributory negligence, and bars recovery on the first count of the complaint. It is also his contention that in the event that defendant appellee is determined to be guilty of wanton and wilful misconduct, that likewise Atz and Ritter were guilty of such misconduct, and that such misconduct barred recovery on the second count. It is seriously argued by counsel for appellee that the operators of the Ritter car were just as much duty bound to see and have regard for the traffic approaching on the side road as Nieman was to observe and have regard for the traffic on a through highway. To support his view, there is cited the following cases; Kirchoff v. VanScoy, 301 Ill. App. 366; Walker v. Illinois Commercial Tel. Co., 315 Ill. App. 553; Dee v. City of Peru, 343 Ill. 36. We deem it unnecessary to burden this opinion with a detailed analysis of each of those cases, but suffice it to say that not one of them sustains appellee’s contention. For instance, in the Kirchoff case, there was not a preferred highway or street involved.

It must be borne in mind that Ritter’s car was proceeding at a reasonable rate of speed on a through highway, on the proper side of the road, and when it had almost cleared the intersection, it was struck by the defendant’s truck. The defendant makes the admission that he did not see the Ritter car until he struck it. There is evidence in the record that the defendant did not stop before entering the intersection, and this charge of the defendant’s misconduct is sustained by the testimony of Mrs. Sigafus who said she saw the fender of his truck coming down the road and “just that quickly we was hit.” If certainly is reasonably inferable from that statement that defendant’s truck came into the intersection suddenly and without stopping.

The defendant testified that he did stop and that he looked both ways, and that he could see down the road six to eight hundred feet. Where was the Ritter car during this time? Why could he not see it? Our courts have repeatedly held since the pronouncement in the case of Greenwald v. Baltimore & O. R. Co., 332 Ill. 627, that the law does not tolerate the absurdity of one saying he looked and did not see when there is nothing to prevent it. What is the purpose of a stop sign? Certainly, it does not signify that a motorist should stop, and then blindly proceed through a protected intersection without determining that he can do so with reasonable safety. The operator of a motor vehicle, when he stops at a preferred highway, should ascertain if he can proceed safely across such highway. If he can not, he should not enter it. Merely stopping some place near a stop sign does not necessarily discharge one’s duty. There is no virtue in stopping at a place when one can not see. A stop sign is a challenge to motorists to stop at a point where, by the use of one’s faculties, one can definitely ascertain if he can safely proceed into the protected thoroughfare. Using the language of the Greenwald case, swpra, we say that the law will not tolerate the absurdity of a motorist saying -that he stopped at a through street hut did not see another vehicle with which he collided as he proceeded into the intersection, when it is so obvious that if he had stopped and looked he would have seen the vehicle.

There was testimony that Bitter yelled, “Look out,” just before the defendant’s truck collided with their car. Can it not he reasonably iiiferred from this that the deceased was looking out for traffic on this- side road?' The deceased had traveled this route for some timé, and knew that he was using a preferred highway,- and it is altogether possible that he saw the defendant’s truck before he yelled, but had the right to assume that the truck would stop and permit them to ipass unharmed.

We must here recognize the well established fule — that in deciding a motion to instruct the jury té'find the defendant not guilty, it is the duty of the court to consider the evidence in its most favorable aspect to the plaintiff, together with all reasonable inference arising therefrom. It has been repeatedly held that the question of contributory negligence is preeminently a question of fact for the jury. In the case of Thomas v. Buchanan, 357 Ill. 270, the court said “The question of due care on the part of plaintiff’s intestate is always a question of fact to be submitted to the jury whenever there is any evidence in the. record, which, with any legitimate inference that may reasonably and legally be drawn therefrom, tends to show the exercise of due care on the part of the deceased.” One of the more recent cases that deals with this question is that of Blumb v. Getz, 366 Ill. 273. The court said in this case, “The question of contributory negligence is one which is pre-eminently a fact for the consideration of the jury. It cannot be defined in exact terms and unless it can be said that the action of a person is clearly and palpably negligent, it is not within the province of the court to substitute its judgment for that of a jury which is provided for the purpose of deciding this as well as other questions in the case.” Also, the court said therein, “In considering the question of due care on the part of plaintiff’s intestate, it is well to remember that this cannot always be shown by direct proof but that the evidence as adduced by the plaintiff should disclose facts from which it may be reasonably inferred that the plaintiff’s intestate was in the exercise of due care.” The appellant cites two Michigan cases where the factual situation is quite similar to the one under consideration. In Slivensky v. Wayne, 307 Mich. 443, 12 N. W. (2d) 331, the plaintiff testified that while traveling on a through highway did not look to the right or diminish his speed as he approached the intersection of that highway with a side road. The plaintiff’s view was obscured by growing corn and some signs. The court there held that even if plaintiff had looked for traffic approaching from the side road, he could not have seen a car. coming in from the side road in time to avoid a collision with it. In the other case found in Rife v. Colestock, 297 Mich. 194, 297 N. W. 238, the court stated that the driver on a preferred street who had not looked for traffic approaching from the intersecting street had the right to assume that any driver approaching from the intersecting street would obey the law by stopping and that the question of plaintiff’s contributory negligence was a question of fact for the jury.

We are of the opinion that it was a question of fact for the jury to determine whether Atz and Bitter were in the exercise of due care just before and at the time of the accident. We are also of the opinion that the court erred in not submitting to the jury the issues raised in the second count of the complaint, namely, whether or not the defendant was guilty of wanton and wilful misconduct. If the witnesses for the plaintiff are to be believed, it can be fairly inferred that the defendant drove through a stop sign without stopping and looking, and into an intersection where he struck an automobile that he didn’t even see before he struck it. The defendant had crossed this intersection for many years and knew of the existence of the stop sign, and that this was a place of danger. Whether or not such conduct indicated a reckless disregard for the safety of others was a question of fact properly to be submitted to a jury. Brown v. Illinois Terminal Co., 319 Ill. 326; Schmidt v. Anderson, 301 Ill. App. 28.

It is the considered opinion of this court that this case should be submitted to the jury on both counts and it is reversed and remanded for that purpose.

Cause reversed and remanded.


author: Presiding Justice Hayes.

text:
    Neal D. Reardon, Appellant, v. Agnes M. Herget, Executor of Estate of William P. Herget, Deceased, Appellee.
    Gen. No. 9,486.
    opinion filed May 28, 1946;
    released for publication June 24, 1946.
    Neal D. Reardon, pro se; C. V. Frings, for appellee.
   Opinion by

Presiding Justice Hayes.

Not to be published in full.


text:
    Minnie I. Greene, Appellee, v. Arthur A. Greene, Appellant.
    Gen. No. 9,504.

      opinion filed May 28, 1946;
    released for publication June 24, 1946.
    Carl R. Miller, for appellant; J. William Record, of counsel; no appearance for appellee.
   Opinion by

Presiding Justice Hayes.

Not to be published in full.


author: Justice Dady.

text:
    People of State of Illinois ex rel. Henry Dickwisch, Plaintiff in Error, v. Virginia Ruffcorn et al., Defendants in Error.
    Gen. No. 9,502.
    opinion filed May 28, 1946;
    released for publication June 24, 1946.
    George F. Barrett, Attorney General, and Samuel J. Naylor, State’s Attorney, for plaintiff in error; no appearance for defendants in error.
   Opinion by

Justice Dady.

Not to be published in full.


author: Justice Wheat.

text:
    Margaret Cole, Appellant, v. Carl I. Glasgow et al., Appellees.
    Gen. No. 9,482.
    opinion filed May 28, 1946;
    released for publication June 24, 1946.
    Dwight H. Doss, for appellant; Ralph J. Monroe, for appellee.
   Opinion by

Justice Wheat.

Not to be published in full.


text:
    Vera Price, Appellee, v. Lyndell Price, Appellant.
    Gen. No. 9,497.
    opinion filed May 28, 1946;
    released for publication June 24, 1946.
    Jack McDonald, for appellant; Gilbert K. Hutchens, for appel-lee.
   Opinion by

Justice Wheat.

Not to be published in full.


text:
    Charles Gilmore, Appellee, v. Charles Mix, W. A. Doss and T. W. Doss, Appellants.
    Gen. No. 9,501.
    opinion filed May 28, 1946;
    released for publication June 24, 1946.
    Dwight H. Doss, for appellants; Arlo E. Bane, for appellee.
   Opinion by

Justice Wheat.

Not to be published in full.


author: Presiding Justice Friend.

text:
    J. Edward Jones, Appellant, v. Benjamin I. Salinger, Jr., et al., Defendants. Howard Blum, H. Booker and Chicago Title and Trust Co., Appellees.
    Gen. No. 43,450.
    opinion filed May 29, 1946;
    rehearing denied June 12, 1946; released for publication June 13, 1946.
    J. Edward Jones, pro se; McInerney, Epstein & Arvey, for certain appellee; Louis M. Mantynband, and Melvin A. Garretson, of counsel; Sonnenschein, Berkson, Lautmann, Levinson & Morse, for certain other appellee; John J. Faissler, of counsel.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    In re Estate of Augusta P. Kroening, Deceased. Selma Kroening, Appellee, v. Eleanor Richards, Appellant.
    Gen. No. 43,480.
    opinion filed May 29, 1946;
    released for publication June 13, 1946.
    Wachowski & Siemanski, for appellant; Otto Schusterman, for appellee.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    John F. McDonough, Minor, by Martin McDonough, Father and Next Friend, Appellant, v. Fred Schwartz, Appellee.
    Gen. No. 43,502.

      opinion filed May 29, 1946;
    released for publication June 13, 1946.
    Lester E. Williams, for appellant; Jones, Key & Chapman, for appellee; C. D. Jones and Alfred W. Bosworth, of counsel.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    Joseph P. Rogers and La Verne Rogers, Appellants, v. Genevieve Trudzinski et al., Appellees.
    Gen. No. 43,519.
    opinion filed May 29, 1946;
    released for publication July 2, 1946.
    James B. Hood and William C. Scherwat, for appellants; George A. Gordon, for appellees.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    Myron Levin, Minor, by Maurice Levin, Father and Next Friend, Appellant, v. Lauterbach Coal and Ice Company et al., Appellees.
    Gen. No. 43,563.
    opinion filed May 29, 1946;
    released for publication June 13, 1946.
    Harry S. Posner, for appellant; Leo S. Karlan, of counsel; Otto M. Hamer, for certain appellee; Chester D. Kern, of counsel; James O. Dwight, Erwin H. Wright and Arthur J. Donovan, for certain other appellees; William J. Flaherty, of counsel.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


author: Justice Scanlan.

text:
    John H. Chatz, Trustee in Bankruptcy of Estate of John W. Hight, Bankrupt, Appellee, v. Edward I. Bloom et al., Defendants. Edward I. Bloom, Appellant.
    Gen. No. 43,362.

      opinion filed May 29, 1946;
    released for publication June 13, 1946.
    Thomas C. McConnell, for appellant; Thomas C. McConnell and Norman A. Korfist, of counsel; William S. Kleinman, for appellee.
   Opinion by

Justice Scanlan.

Not to be published in full. .


text:
    Clinton C. Clarke and Allan D. Grant, Special Administrator of Estate of Mary B. Warner, Deceased, Appellants, v. Robert D. Baird, Executor Under Last Will and Testament of Clay M. Baird, Deceased et al., Defendants.
    Gen. No. 43,461.
    opinion filed May 29, 1946;
    released for publication June 13, 1946.
    C. Lysle Smith, for appellants; Gariepy & Gariepy, for appellee; Fred A. Gariepy and John Spalding, of counsel.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Frances Nepermann, Appellee, v. Leo Nepermann, Appellant.
    Gen. No. 43,643.
    opinion filed May 29, 1946;
    released for publication June 13, 1946.
    McCarthy, Toomey & Reynolds, for appellant; Frank A. McCarthy and John E. Toomey, of counsel; Posanski, Lelivelt & Walter, for appellee; Roman E. Posanski and William Jacobs, of counsel.
   Opinion by

Justice Scanlan.

Not to be published in full.


author: Justice Sullivan.

text:
    Norine Bidwell, Appellant, v. John T. Dempsey, Administrator of Estate of Harry J. Roberts, Deceased, Appellee.
    Gen. No. 43,447.
    opinion filed May 29, 1946;
    released for publication June 13, 1946.
    Black & Beermann, for appellant; Benjamin H. Black, of counsel; Don M. Peebles, for appellee; Arthur J. Murphy and William J. Lunn, of counsel.
   Opinion by

Justice Sullivan.

Hot to be published in full.


text:
    Dr. Irving Rothenberg, Appellee, v. Elizabeth Kaiser, Appellant.
    Gen. No. 43,489.
    opinion filed May 29, 1946;
    released for publication June 13, 1946.
    Dent, Weichelt & Hampton, for appellant; Dwork & Epton, for appellee; Walter E. Moss, of counsel.
   Opinion by

Justice Sullivan.

Not to be published in full.


text:
    Ralph A. Terrell, Appellant, v. Tool Equipment Sales Company, Appellee.
    Gen. No. 43,570.

      opinion filed May 29, 1946;
    released for publication June 13, 1946.
    Goldman, Allshouse & Healy, for appellant; F. V. Healy and Robert G. Dreffein, of counsel; Litsinger, Gatenbey, Spuller & McNeill, for appellee.
   Opinion by

Justice Sullivan.

Not to be published in full.


author: Presiding Justice Matchett.

text:
    Beatrice Burgerman Kaplan, Appellee, v. Jacob L. Kaplan, Appellant.
    Gen. No. 43,706.
    opinion filed June 10, 1946;
    released for publication July 1, 1946.
    Roland V. Libonati and Ira D. Schultz, for appellant; D. J. Wayne, for appellee; Edward LeVine, of counsel.
   Opinion by

Presiding Justice Matchett.

Not to be published in full.


text:
    Ruth Schikora Wayne, Appellee, v. Freeport Motor Casualty Company, Appellant.
    Gen. No. 43,715.
    opinion filed June 10, 1946;
    released for publication July 1, 1946.
    Eckert & Peterson, for appellant; Burt A. Crowe and Carl E. Abrahamson, of counsel; Joseph F. Elward, for appellee; Philip Conley, of counsel.
   Opinion by

Presiding Justice Matchett.

Not to be published in full.


author: Presiding - Justice Hatchett.

text:
    Minnie V. Pickard, Appellee, v. Millie B. Rice, Appellant.
    Gen. No. 43,727.

      opinion filed June 10, 1946;
    released for publication July 1, 1946.
    Newell Mecartney, for appellant; no appearance for appellee.
   Opinion by

Presiding - Justice Hatchett.

Not to be published in full.


text:
    Charles Borin, Trading as American Machine Works, Appellee, v. National Metal Products Corporation, Appellant.
    Gen. No. 43,729.
    opinion filed June 10, 1946;
    released for publication July 1, 1946.
    Adams, Moses & Culver, for appellant; Charles G. Culver, of counsel; Freed & Green, for appellee; Philip E. Freed and Jules R. Green, of counsel.
   Opinion by

Presiding Justice Matchett.

Not to be published in full.


author: Justice Niemeyer.

text:
    B. M. Patton, Appellant, v. Jacob Stangle et al., Ap-pellees.
    Gen. No. 43,484.

      opinion filed June 10, 1946;
    released for publication July 1, 1946.
    B. M. Patton, pro se; Charles C. Mull, of counsel; Harold L. Reeve and Charles F. Grimes, for certain appellees; Charles F. Grimes, of counsel; McInerney, Epstein & Arvey, for certain other appellees; Louis M. Mantynband and Sidney R. Zatz, of counsel; Edwin A. Halligan, for certain appellee.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    Mary Demske, Appellant, v. John Crevie, Appellee.
    Gen. No. 43,642.
    opinion filed June 10, 1946;
    released for publication July 1, 1946.
    Owens & Owens, for appellant; Thomas L. Owens, of counsel; John M. Beverly, J. T. Kiggins and A. J. W. Appell, for appellee; A. J. W. Appell, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    Claire B. Borin, Appellee, v. Nathan Borin, Appellant.
    Gen. No. 43,689.
    opinion filed June 10, 1946;
    released for publication July 1, 1946.
    Simon Herr and Harold Tucker, for appellant; Benjamin B. Davis, for appellee; Harry J. Lurie, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    Louise Swanson, Appellant, v. Progress Electric Company, Appellee.
    Gen. No. 43,697.

      opinion filed June 10, 1946;
    released for publication July 1, 1946.
    Royal W. Irwin, for appellant; Hinshaw & Culbertson, for appellee; Oswell G. Treadway, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    Joseph Dusatko, Appellee, v. Charles Pletka, Appellant.
    Gen. No. 43,711.
    opinion filed June 10, 1946;
    released for publication July 1, 1946.
    James F. Lyons, for appellant; W. W. Kriebel, Jr., of counsel; Querrey & Harrow, for appellee; Edward J. Gulanick, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


author: Justice Bristow.

text:
    Alfred Kreps, Minor, by Goldie Zamowski, Mother and Next Friend, Appellant, v. Frank A. D’Agos-tine, Trading as Blackhawk Tavern, Appellee.
    Gen. No. 10,076.
    opinion filed June 14, 1946;
    released for publication July 2, 1946.
    B. Jay Knight and Frederick H. Haye, for appellant; Thomas A. Keegan, of counsel; William D. Knight and Frank P. North, for appellee.
   Opinion by

Justice Bristow.

Not to be published in full.


text:
    L. F. Schaumburg et al., Appellees, v. Allen M. Lindsay et al., Appellants.
    Gen. No. 10,087.
    opinion filed June 14, 1946;
    released for publication July 2, 1946.
    Stewart R. Winstein and Meyers & Meyers, for appellants; Stewart R. Winstein, of counsel; Oakleaf & Churchill, for appellees; Cyrus Churchill, of counsel.
   Per Curiam.

Not to be published in full.


author: Mr. Justice Dove

text:
    Merchants National Bank of Aurora, Appellant, v. Walter S. Frazier et al., Appellees.
    Gen. No. 10,068.

      Opinion filed June 14, 1946.
    Released for publication July 15, 1946.
    Newhall & Givler, of Aurora, for appellant.
    Gariepy & Gariepy, of Chicago, for appellees; J. Emil Brunnemeyer, of Aurora, guardian ad litem; Fred A. Gariepy and John Spalding, both of Chicago, and J. Emil Brunnemeyer, of Aurora, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

On July 14, 1941, Merchants National Bank of Aurora, appellant, filed a complaint in the circuit court of Kane county against appellees, and Walter S. Frazier, since deceased, alleging that it held as escrow agent, under a written escrow agreement, certain described securities and cash belonging to appellees, which they refused to accept, and asking an order directing appellant to deliver the securities and cash to appellees, or to some person for them to be designated by the court, and decreeing that the plaintiff had fully complied with all the terms of the escrow agreement, and that it be relieved from any further responsibility or liability thereunder. The defendants answered the complaint and filed a counterclaim, alleging the creation of a trust under the escrow agreement and the assumption by the bank.of trust duties and a fiduciary relationship as to the investment of $18,000 of the funds received by it. The counterclaim charged mismanagement of the trust fund with a consequent loss to the trust estate, and sought relief. Issues were joined, the cause was referred to the master, objections to his report, standing as exceptions, were overruled, and a decree was entered dismissing the complaint for want of equity, and ordering appellant to pay appellees the sum of $21,447.87 and costs of suit, and to pay the guardian ad litem for the two minor defendants a fee of $1,116 to be taxed as costs. The cause is here on the bank’s appeal from the decree.

The record shows that on March 29, 1924, a written contract for the sale of certain premises in the City of Aurora was executed by Walter S. Frazier, Philip Frazier, Helen F. Heinley, their respective spouses, and Anna Frazier, unmarried, as vendors, George B. Kingsley as vendee, and appellant bank as escrow agent. The purchase price of the property whs $80,000, payable to the escrow agent, with an initial payment of $10,000, the balance due in instalments, the final payment of $40,000 due April 1, 1934, with privilege of prepayment. All payments thereunder, up to the final $40,000 payment were to be distributed by appellant, less its reasonable charges, one half to Walter S. Frazier, and one fourth each to Philip Frazier and Helen P. Heinley. By the terms of the will of Anna Frazier’s father, the premises were charged with the payment to her of $700 per annum during her lifetime. This was released to the vendee by the contract, with a provision for restoration thereof in case of his default. This contract contained the following provision:

“When and if the said final forty thousand dollars ($40,000.00) payment shall be made by Vendee the Escrow Agent is directed to segregate, retain and invest such portion thereof as will produce a net income of seven hundred dollars ($700.00) annually, which sum shall be paid to Anna Frazier during her life. At her death the principal sum so directed to be retained shall be distributed by the Escrow Agent less its reasonable charges, one-half to Walter S. Frazier and one-quarter each to Philip Frazier and Helen F. Heinley as above. ’ ’

On June 29, 1928, appellant wrote each of the vendors that the vendee would pay the balance of the purchase price on July 6, 1928 and would expect delivery of his deed, stating that “Under the terms of the escrow agreement, we will be required to retain out of the money which Mr. Kingsley pays to us an amount sufficient to insure an annual income of $700.00 to Miss Anna Frazier for the term of her lifetime. The remainder of. the funds will be distributable as soon as received. ” The letter also stated that the bank had undertaken to underwrite a 6 per cent first mortgage on the property for $70,000 upon delivery of the deed, and suggested investment in the notes by the vendors from their shares of the funds; and also suggested that the bank held other mortgages and securities which it would be very pleased to have an opportunity to submit for their consideration.

Under date of July 2, 1928, appellant made the $70,000 loan to Mr. Kingsley, secured by a trust deed on the property, in which the bank was named as trustee. About $51,000 had been spent on the property in repairs and improvements, and the total income was about $1,000 per month. On July 6, 1928, the vendee paid appellant the balance of the unpaid purchase price, $63,000, with accrued interest from April 1, aggregating $63,994.19, and received his deed. Of this amount appellant retained $18,000, shown on-its statement of distribution on July 7,1920 to each of the vendors as: “Withheld by Merchants National Bank, Trustee for Anna Frazier, $18,000.” Appellant also retained $50 “as escrow agent April 1 to July 6, and closing fee,” and distributed the balance of the funds in accordance with the terms of the contract. The statement of distribution was accompanied by a letter advising the vendors that appellant had retained $18,000 as the annuity fund; that it was their custom under a trust calling for a definite annual income to hold such an amount as would produce such income at 4 per cent; that at the “present” time the fund would net approximately 5% per cent; and that at the end of each year the surplus income over the $700 requirement would be distributed to them, and that upon the death of Anna Frazier the entire fund as then constituted would be paid out to them.

On the same day, appellant opened an account in its trust department, under the heading: “Trust No. 154. Anna Frazier Trust Under Agreement.” The first entry in the account reads: “July 7, 1928 — Bec’d. from M. N. Bank Escrow Agent initial principal $18,466.68.” The $466.68 was money the bank had on hand to the credit of Anna Frazier from principal payments into the escrow. On the same day the account was debited with $8,006.58 on account of appellant’s purchase from itself of $8,000 face value and accrued interest of the Kingsley notes. This and other investments by appellant from the fund will be discussed later.

From July 7, 1928 to May 20, 1942, appellant rendered the vendors annual statements of the receipts, disbursements, and investments from the fund. Each of the statements was captioned either as “Statement of the Merchants National Bank of Aurora, as Trustees for Anna Frazier,” or “Annual Statement of Merchants National Bank of Aurora as Trustee Under Agreement for Anna Frazier.” After appellant was called on by appellees to account, it issued its statement for the period ending May 20, 1942, omitting any reference to the trust, and merely referring to the “Anna Frazier account.” None of the statements, except that of July 27, 1929, disclosed from whom the bank purchased securities for the account. The vendors took no action respecting any of these statements. The $700 per annum was paid to Anna Frazier by appellant during her lifetime, and she died on August 7, 1936. Helen F. Heinley died in December 1939, leaving her husband and two minor children surviving, and they were made parties defendant to the complaint. Walter S. Frazier died during the pendency of the suit and on December 8, 1944 the administrator with the will annexed of his estate was substituted as a defendant and counterclaimant.

The record shows that with the exception of the Kingsley notes purchased by appellant from itself, all the securities with which the decree surcharges appellant, purchased by it from the $18,000 fund, were purchased from the bank’s affiliate, the Merchants National Investment Company, a corporation organized in 1931 to take over the investment and loan business of the bank. Seven of the bank’s directors were subscribers to the capital stock of the investment company, in substantial amounts. Five of its directors were directors of the bank, and its office adjoined the trust department of the bank on the second floor of the bank building. Some of its stockholders were stockholders in the bank, and the trust officer of the bank was president of the investment company. In 1933, the investment company moved to other quarters in the city, and later to the Kingsley building. In 1937 its corporate name was changed to “Aurora Investment Company,” under which name it was still doing business at the time of the trial. All of the surcharged securities had largely declined in value.

The basis of the decree is as follows: Principal amount of improper investments, $19,728.06, interest thereon at 5 per cent from date of the decree, $8,525.32, aggregating $19,253.38, less $2,482.50 interest thereon, received and distributed, leaving a net balance of $16,770.88. To this was added $3,053.49, cash in appellant’s hands on May 20, 1942, and the principal of the Felz note of $1,390 collected by appellant during the course of the litigation and not surcharged, making a total of $21,214.37, to which was added stenographer’s and master’s charges of $227.50, making a grand total of $21,441.87, the amount of the decree..

Appellant claims that the written agreement created merely a special agency; and that there was no trustee beneficiary relationship; that upon receipt by the vendors of the letter from appellant stating that it had retained $18,000 for the purpose of investment in securities, the vendors had the right as principals under the agreement, to direct, first, how much should be retained by appellant, as, in any event, the bank was only acting as their agent and subject to their control; second, what particular class of securities they desired the bank to invest in; that if Government bonds were desired by the principals, at least $25,000 would have to be retained, instead of the $18,000, “proposed” by the bank; third, to inquire of the bank what they had or proposed to invest in to produce a net income of 5% per cent; and that appellees are precluded from objecting to appellant’s accounts because of failure to raise objections at the time of appellant’s annual statements.

Appellees contend that the written agreement created a trust which became operative when the escrow was terminated and appellant withheld from the proceeds of the escrow an amount which it deemed adequate to produce the annual income of $700 for Anna Frazier; that appellant was a fiduciary, and violated the law and the trust by purchasing securities from itself and from its affiliate for the trust estate; and that appellees did not waive such breaches of trust and are not estopped from holding appellant liable for its misconduct. The decree finds that appellant was and is such a trustee, and this is the principal issue.

The contract does not contain, either directly, or by necessary implication, any such rights on the part of the vendors as is claimed by appellant. By its terms, the bank was required to retain an amount sufficient to produce an annual income of $700, and the bank alone had power to determine the amount to be so retained. No right was given to or reserved by the vendors to designate the amount to be retained for investment, or to say in what class of securities such investment should be made, but the duty and the responsibility in those matters were wholly those of the bank.

An escrow has been defined to be a written instrument which by its terms imports a legal obligation, and which is deposited by the grantor, promissor or obligor, or his agent, with a stranger or third party, to be kept by the depository until the performance of a condition or the happening of- a certain event and then to be delivered over to the grantee, promisee or obligee. (Main v. Pratt, 276 Ill. 218, 224.) In Stark v. Chicago Title & Trust Co., 316 Ill. App. 353, 360, the court said in the opinion: “From the time the deposit is made the escrowee becomes the trustee of both the party making the deposit and the one for whose benefit it is made.” However, if it be conceded that appellant was merely an escrow agent up to the time final payment was made by the vendee and the deed was delivered to him, it is obvious that upon the occurrence of those events, the escrow agreement was fully performed and terminated as between the vendors and the vendee, and as between appellant and the vendee, and when the money received by appellant, over and above the $18,000, was distributed to the vendors the next day, the escrow as to the fund so distributed was also fully performed and terminated, which leaves in question only the status of the $18,000 retained, and with which the vendee never had anything to do. From that time on, the contract was effective between appellant and the vendors exclusively.

The opinion in Weer v. Gand, 88 Ill. 490, 493, quotes Story on Equity Jurisprudence, sec. 964, as follows: “A trust, in the most enlarged sense used in English jurisprudence, may be defined to be an equitable right, title or interest in property, real or personal, distinct from the legal ownership thereof; in other words, the legal owner holds the direct and absolute dominion over the property, in view of the law; but the income, profits or benefits thereof in his hands belong wholly or in part to others.” The opinion further quotes the following from Lord Hardwicke’s expression in Stuart v. Mellish, 2 Atk. 612: “A trust is where there is such confidence between parties that no action at law will lie, but is merely a case for the consideration of this court.” In Wagner v. Maynard, 64 Ill. App. 239, the same doctrine is laid down as in Stuart v. Mellish, supra. See also Pure Oil Co. v. Byrnes, 388 Ill. 26, 40. Generally, a trust may be said to exist where the legal estate is in one person and the equitable estate is in another, or where there are rights, titles and interest in property distinct from the legal ownership thereof. (Martin v. Rockford Trust Co., 281 Ill. App. 441.) Manifestly, when appellant segregated and took over the $18,000 for investment, it had the legal title thereto, and the beneficiaries of the fund had only the equitable title.

The basic difference between a trust and an agency is stated in 1 Scott on Trusts, par. 8, as follows : “An agent acts for and in behalf of his principal and subject to his control; a trustee as such is not subject to the control of his beneficiary, although he is under a duty to deal with the trust property for his benefit in accordance with the terms of the trust and can be compelled by the beneficiary to perform his duty. The agent owes a duty of obedience to his principal; a trustee is under the duty to conform to the terms of the trust. An agent as such does not have title to the property of the principal, although he may be entrusted with possession and although he may have power to pass title; a trustee has title to the trust fund. The incidents of the agency relation are often different from those of a trust. An agent acting within the scope of the employment has power to subject his principal to liability in contract and in tort; the trustee, unless he is also an agent, has no such power. Liabilities which are imposed by law upon the owners of property are imposed upon the principal and not upon the agent; such liabilities, however, are imposed upon the trustee and not upon the beneficiary.” The essential distinctions between a trust and an agency are that the title and control of the property is in the trustee, who acts in his own name, while an agent represents and acts for his principal and a trust may ordinarily be terminated by the fulfillment of its purpose, while an agency may in general be revoked at any time. (See Light v. Scott, 88 Ill. 239.)

It is essential to the creation of a trust that the declaration must make reasonably certain its material terms, and that these terms include, first, the subject matter or property embraced within the trust; second, the beneficiaries or persons in whose behalf the trust is created; third, the nature and quantity of the interests which they are to have; and fourth, the manner in which the trust is to be performed. (Marble v. Estate of Marble, 304 Ill. 229, 235; People ex rel. Nelson v. Chicago Bank of Commerce, 371 Ill. 396.) A trust has been defined as an obligation upon a person arising out of confidence reposed in him to apply property faithfully and according to such confidence. It is also said to be in the nature of a deposition, by which a proprietor transfers to another the property of the subject intrusted, not that it should remain with him, but that it should be applied to certain uses for the behoof of a third person. There is no particular formality required or necessary in the creation of a trust. Any agreement or contract in writing made by a person having the power of disposal over property, whereby such person agrees or directs that a particular parcel of property or a certain fund shall be held or dealt with in a particular manner for the benefit of another, in a court of equity raises a trust in favor of such other person claiming under him, voluntarily or with notice. (Marble v. Estate of Marble, supra, at page 240, citing Perry on Trusts, secs. 2 and 82; Kemmerer v. Kemmerer, 233 Ill. 327, 333, 334.) In the Marble case it is also held that the relation of debtor and creditor may be changed to that of trustee and cestui que trust, but that in order to effect the change there must be some particular property or certain fund held for the benefit of the cestui que trust, and that it is essential that the declaration must not only show an intention on the part of the debtor to become a trustee, but it should also show the existence of a fund in his hands or property in his possession which he holds for the benefit of the creditor. This, in principle, is in accord with the contention of appellees that even if appellant was only initially an escrow agent, the relation as such escrow agent was changed to that of trustee when appellant segregated and retained the specific amount of $18,000 for investment, after all the other provisions of the contract were performed and terminated. Thus, merely labeling* appellant in the contract as escrow agent respecting* the fund to be retained and invested, or as a trustee, by the entries on its books and in its annual statements, is not determinative of the real character of the transaction, but its true status must be determined from the relations of the parties, their respective rights and duties, as disclosed by the record, and the law applicable thereto. Under the facts in this case, and the principles announced by the foregoing authorities, the trial court was correct in holding that appellant was and is a trustee of the $18,000 fund.

The remaining question is whether appellant’s investments from the fund comport with its duties and obligations as such trustee. The securities surcharged by the decree as improper investments, are as follows: (1) Four Kingsley notes, purchased by appellant. from itself, of which three were for $1,000 each, and the fourth for $5,000, numbered 95, 96, 97 and 110, out of 110 notes maturing serially up to July 2,1938. The decree finds that the makers defaulted in the payment of interest on January 2, 1933, and foreclosure was instituted on November 9,1934. As a result, appellant received a certificate of a fractional beneficial interest, stated by the decree to be in the amount of $9,120. The other securities, all purchased by appellant from the investment company are: (2) The H. F. Heiss notes, one for $100 and one for $1,000 face, and accrued interest, $1,115.32, purchased in July 1932, on which interest was in default since May 1, 1931, and subsequently exchanged for a certificate of beneficial interest. (3) The Frank J. Burkel note of $1,000 and accrued interest, purchased July 19, 1932, out of a $21,000 loan made by the investment company. The first interest, due December 30, 1932, was defaulted, and on Febuary 1, 1938, the note was exchanged for a certificate of beneficial interest issued by the investment company, and payment of $210.49 was subsequently made, leaving a principal balance unpaid of $789.51. (4) The Boscoe Sprinkel note, No. 5 for $500 face and accrued interest of $1.35, purchased April 15,1932, maturing April 1,1936, out of a $11,500 loan maturing serially, secured by a trust deed in which appellant was named trustee, the last notes due April 1, 1937. The interest due April 1, 1933, was defaulted, later paid in six instalments in 1934, and the maturity of the loan was extended to April 1, 1943. (5) The N. F. Tillitson note for $100 and accrued interest of 43 cents, being No. 7 of nine notes for $3,500, all maturing June 17,1936, purchased on July 11,1932, on which the interest of $113.75 due June 17,1932, was in default, and so remained until January 5, 1933, when $35 of it was paid.

None of these notes conformed to the requirements of the statute then in force (Ill. Rev. Stat. 1943, ch. 148, par. 32 [Jones Ill. Stats. Ann. 135.05]), enumerating the securities permissible for the investment of trust funds. The Kingsley notes, the Sprinkel note, and the Heiss notes were “split” securities of the class condemned in In re Estate of Lalla, 362 Ill. 621, 627, as not being first mortgage notes because there was no parity clause, and other notes of the issue had prior maturities and were entitled to priority in the order of their maturity. The interest on the Heiss notes and the Tillitson note was in default when the notes were purchased, and by the statute only such notes on which there had been no default in the payment of interest for five years were permissible investments.

Furthermore, a fatal objection to the validity of the surcharged investments is the purchase of such securities by appellant from itself or from its affiliate, the Merchants National Investment Company. The principles upon which that doctrine is based are so familiar as to need no repetition here, and are found fully set out in Kinney v. Lindgren, 373 Ill. 415, 422 ; 2 Scott, Law of Trusts, sec. 170.12, pp. 875-877; Restatement of Trusts, par. 170, p. 435; Bennett v. Weber, 323 Ill. 283, 293, 294; Campbell v. Albers, 313 Ill. App. 152, 166; Joliet Trust & Savings Bank v. Ingalls, 276 Ill. App. 445, 451; Lawndale Nat. Bank of Chicago v. Kaspar American State Bank, 288 Ill. App. 555, 558.

Appellant argues that if the bank had not made the Kingsley loan in 1928, there would undoubtedly have been a 1931 default in payment under the contract, and the vendors would have been compelled to repossess the building at a shrinkage of at least $25,000. Appellant admits that this is no legal reason or defense, but urges that it is an element to be considered because, during the depression days of 1930 and 1931, there was a loss in all classes of securities except Government bonds, and suggests that evidently the Fraziers did not wish the fund to be invested in Government bonds because it would require a larger amount than the $18,000 in order to yield an annual income of $700. The answer to these contentions is that the financial depression of that period is not an excuse for imprudent investments by a trustee (In re Estate of Busby, 288 Ill. App. 500, 519), and the vendors had no right to a voice in the selection of securities for investment, as hereinabove pointed out.

Appellant’s contention that because appellees were informed of the investments by the annual statements and made no objection thereto, they are estopped to now question them, is without merit. Appellant was a trustee. None of the statements disclosed that any of the securities were purchased by appellant from its affiliate, or that any of them were “split” securities of the class mentioned above, or were in default when purchased, and there is no claim or showing that any of appellees had knowledge of any of such conditions. In order to bind a cestui que trust by acquiescence in a breach of trust by the trustee, it must appear that the cestui que trust knew all the facts, and was apprised of his legal rights, and was under no disability to assert them. Such proof must be full and satisfactory. The cestui que trust must be shown, in such case, to have acted freely, deliberately and advisedly, with the intention of confirming a transaction which he knew, or might or ought, with reasonable or proper diligence, to have known to be impeachable. His acquiescence amounts to nothing if his right to impeach is concealed from him, or if a free disclosure is not made to bim of every circumstance which it is material for him to know. He cannot be held to have recognized the validity of a particular investment, unless the. question as to such validity appears to have come before him. The trustee cannot escape the liability merely by informing the cestui que trust, that he has committed a breach of trust. The trustee is bound to know what his own duty is, and cannot cast upon the cestui que trust the obligation of telling him what such duty is. Moreover, mere knowledge and non-interference by a cestui que trust before his interest has come into possession do not always bind him as acquiescing in the breach of trust. As a general rule, acquiescence by a tenant for life, or by a cestui que trust, for life, will not bind the person entitled to the remainder. (White v. Sherman, 168 Ill. 589, 605 et seq., citing numerous authorities.) Imper-feet information will be regarded as equivalent to concealment; and a person is not estopped by his silence when there is no positive duty or opportunity to speak; nor will mere delay short of the period, fixed as a bar by the Statute of Limitations, preclude the assertion of his equitable rights. (White v. Sherman, supra.) The same principles are laid down in Penn v. Fogler, 182 Ill. 76, 109; In re Estate of Busby, 288 Ill. App. 500, 538; Fidelity & Casualty Co. of New York v. Heitman Trust Co., 317 Ill. App. 256; Joliet Trust & Savings Bank v. Ingalls, supra; In re Cook’s Trust Estate, 20 Del. Ch. 123,171 Atl. 730. In State v. Illinois Cent. R. Co., 246 Ill. 188, relied upon by appellant, where a contract relation of debtor and creditor existed as to periodical payments to the State of 5 per cent of the railroad company’s gross revenues, the court pointed out in the opinion (page 240), that although the relations between the parties were similar in some respects to a fiduciary relation, no such fiduciary relation, in the strict use of that phrase, existed. There is nothing said in the opinion which is out of harmony with the authorities above cited. Other cases relied upon by appellant, involving the relation of principal and agent, are not in point.

The fact, urged by appellant, that Walter S. Frazier bought $2,000 of the Kingsley notes, a few weeks after the trust deed was made, does not show such acquiescence in appellant’s improper purchase of the Kingsley notes as to estop him or his legal representative from complaining about the investment. He bought the notes upon appellant’s suggestion, without a disclosure to him that they were improper “split” securities, and upon the express representation by appellant to bfm in a letter that they were “direct first mortgage” notes.

The improper investments mentioned were properly charged to appellant, and the amount of the decree, $21,447.87, is correct. However, the trial court fell into error in taxing the guardian ad litem’s fee to appellant. Under section 6 of the Chancery Act (Ill. Rev. Stat. 1945, ch. 22, par. 6 [Jones Ill. Stats. Ann. 106.03]), it should have been taxed against the estate. (Hutchinson v. Hutchinson, 152 Ill. 347, 353; Wilbur v. Wilbur, 138 Ill. 446, 452; Wright v. Upson, 303 Ill. 120, 145; People v. Pasfield, 284 Ill. 450, 458.) In Flynn v. Flynn, 283 Ill. 206, relied upon by appellees, the proceeding was not a chancery matter, but was a statutory appeal from an order admitting a will to probate, and hence is not applicable. Hall v. Woods, 325 Ill. 114, 141, also relied upon by appellees, was an injunction proceeding against certain persons to prevent them from acting as officers of the Addressograph Company, a corporation. The defendants and others filed a cross bill against the complainants and others, including the Addressograph Company. A guardian ad litem’s fee was taxed against the Addressograph Company, and it was contended that it should have been taxed against the complainants in the original bill. The court held that taxing it against the Addressograph Company amounted practically to a division of it between the parties and was proper. In Allis-Chalmers Mfg. Co. v. Hayes, 339 Ill. 230, 239, a partition suit, also relied upon by appellees, the decree dismissed the bill for want of equity and taxed the guardian ad litem’s fee as a part of the costs. The decree was reversed on the merits and the cause was remanded with directions to enter a decree for partition, and it was held that in view of the fact that the decree must be reversed, the fee of the guardian ad litem and the costs of the appeal should be taxed against the appellees. Neither of the two last mentioned cases upholds the contention of appellees in this case, that the guardian ad litem’s fee was properly taxed to appellant.

On account of the error in taxing the guardian ad litem’s fee against appellant, the decree, is reversed in that particular, but in all other respects it is affirmed. The cause is remanded to the circuit court with directions to modify the decree conforming it to the views herein expressed.

Reversed in part and remanded with directions.