text:
    E. F. Ruwisch, Appellee, v. Charles H. Theis, Appellant.

      Heard in this court at the February term, 1945.
    Opinion filed March 5, 1945.
    Released for publication April 5, 1945.
    John B. Harris, of Granite City, for appellant.
    No appearance for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Madison county, denying and refusing the motion of appellant, Charles H. Theis (hereinafter called defendant) to vacate and set aside a judgment entered as to him, personally, by confession, in the said circuit court.

The note upon which judgment was entered was an ordinary form of note, containing the words, “I, we, br either of us” and signed at the bottom,

"Holsinger-Theis & Co., (Inc.)

J. W. Holsinger

President

Chas. H. Theis

Treasurer”

Judgment was entered upon such note by confession on a narr and cognovit, against Holsinger-Theis & Co., Inc., a corporation, and J. W. Holsinger and Charles H. Theis, individually, for $3,246.15 and costs. Immediately upon learning of such judgment, the individuals filed separate motions to vacate and set aside the judg’ment as to them, and after taking the matter under advisement, the court below denied the motions, from which the defendant Theis now appeals.

It is the contention of the defendant that the note is a note of the corporation only, and not of the individuals whose names appear thereon, and the defendant, likewise, contends that he was entitled to have the judgment vacated as a matter of right because plaintiff did not, in his original complaint, or otherwise, aver any facts tending to show a personal liability on part of the defendant.

It is apparent that, under the provisions of section 20 of the Uniform Negotiable Instruments Act (1943 Ill. Rev. Stat., ch. 98, par. 40 [Jones Ill. Stats. Ann. 89.040]), the note is prima facie the note of the corporation alone and not that of the individuals whose signatures appear above the designation of their offices. The language of the section of the Act involved clearly sets forth that “Where the instrument contains, or a person adds to his signature, words indicating that he signs for or on behalf of the principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized . . .”

Many cases have sustained the principle that a note of the character here involved is prima facie that of the corporation (Derby v. Gustafson, 131 Ill. App. 281; Thompson v. Hasselman, 131 Ill. App. 257). The use of the words, “I, we or either of us” in the note does not, under the facts, establish personal liability on the part of the officers signing the note for the corporation (Cannon v. Miller Rubber Products Co., 128 Ohio St. 72,190 N. E. 210; Williams v. Harris, 198 Ill. 501).

The affirmative affidavit of affiant that the note signed and delivered to plaintiff was delivered not in the individual capacity of the officers, but solely as officers of the corporation, coupled with the prima facie evidence that the note was that of the corporation, in absence of any affirmative averments or showing of a personal obligation, justified the vacation and setting aside of the judgment as against the individuals. The court erred in failing to do so. The judgment of the circuit court of Madison county, entered as against the defendant, Charles H. Theis, should have been set aside and vacated, and the order of said circuit court refusing to so set aside and vacate said judgment is, therefore, reversed, and the cause is remanded to such court, with directions to the court below to set aside and vacate said judgment as to the said defendant, Charles H. Theis.

Reversed and remanded, with directions.


source: Caselaw Access Project

author: Mr. Justice Stone

license: Public Domain

text:
    Harry Hemphill, Administrator of Estate of Thomas Jananik and Katy Jananik, Appellee, v. Agnes Trgovic and Frank Trgovic, Appellants.

      Heard in this court at the February term, 1945.
    Opinion filed March 5, 1945.
    Released for publication April 5, 1945.
    Harold J. Bandy, of East St. Louis, for appellants.
    John B. Harris, of Granite City, for appellees.
   Mr. Justice Stone

delivered the opinion of the court.

On June 25, 1936, Thomas Jananik and Katy Jananik, obtained a judgment in the circuit court of Madison county, against Agnes Trgovic and Frank Trgovic, defendants appellants, who will hereinafter be designated as defendants, in the sum of $785.42 and costs of suit.

On November 26,1943, an attorney acting for Harry Hemphill who is designated in this court as administrator of the estate of Thomas Jananik, and together with Katy Jananik is one of the plaintiffs appellees, styled hereinafter as plaintiffs, filed his affidavit for scire facias to revive the judgment. This affidavit gives the style of the case as Harry Hemphill, administrator of the estate of Thomas Jananik, and Katy Jananik v. Agnes Trgovie and Frank Trgovie.'

It alleges that on June 25, 1936, Thomas Jananik and Katy Jananik, in case general number .. . . , obtained a judgment against Agnes Trgovie and Frank Trgovie and that no part of same has been paid. On this affidavit a writ of scire facias was issued and served on defendants. After the return day, the defendants having failed to answer said writ or to show cause why the judgment should not be revived,.a default judgment was taken against them and execution awarded thereon. »

Defendants seek a reversal of the judgment on the ground that the affidavit not having alleged that Thomas Jananik and Katy Jananik ever died and not explaining by what authority Harry Hemphill became administrator of the estates, is wholly inadequate and insufficient and that the court erred in issuing the writ of scire facias and reviving the judgment. As matter of fact it appears that Katy Jananik is not dead.

Illinois Rev. Stat. 1943, ch. 83, par. 24b [Jones Ill. Stats. Ann. 107.284(2)], the statute upon which this action is based, provides in substánce that actions to revive judgments by scire facias shall be commenced by affidavit of the judgment creditor, or creditors, his or their agents, attorneys or assigns, setting forth a description of the original judgment, by title of the action, date and amount thereof, together with a statement of any partial satisfaction of any original judgment that may appear of record at the time of making such affidavit.

Section 48, of the Civil Practice Act [Ill. Rev. Stat. 1943, ch. 110, par. 172; Jones Ill. Stats. Ann. 104.048] provides, “Defendant may, within the. time for pleading, file a motion to dismiss the action or suit where any of the following defects appear on the face of the complaint, and he may within the same time, file, a similar motion supported by affidavits where any of the said following defects exist but do not appear upon the face of the complaint; . . . (c) That the plaintiff has not legal capacity to sue.” Under the above, defendants after service of the writ upon them could have limited their appearance in court for the purpose of making a proper motion to dismiss, and raised this objection. This was never done. Every presumption is indulged in the validity of a judgment and under the doctrine of “aider by verdict” many informalities are cured by judgment. Walker v. Newman, 146 Ill. App. 450; StephensAdamson Mfg. Co. v. Fireman’s Fund Ins. Co., 257 Ill. App. 443. Judgment on a scire facias will not be set aside for mere irregularities in the judgment, but only because the judgment was void or has been paid. Orient Mfg. Co. v. Channell, 209 Ill. App. 438.

We believe the affidavit for scire facias was substantially sufficient and finding no error in this record, the judgment of the trial court will be affirmed.

Affirmed.


text:
    Mayflower Sales Company, Appellee, v. R. E. Frazier and C. S. Wooters, Copartners, Trading as Frazier & Wooters, Appellants.
    Heard in this court at the February term, 1945.
    Opinion filed March 5, 1945.
    Released for publication April 5, 1945.

      Glendon C. Hodson, of Contralla, for appellants.
    Frank E. Trobaugh and Stephen E. Brondos, both of West Frankfort, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This is a suit brought by Mayflower Sales Company, plaintiff appellee, who will be referred to hereinafter as plaintiff, against R. E. Frazier and C. S. Wooters, et al., copartners, doing business as Frazier and Wooters, defendants appellants, who will be referred to hereinafter as defendants, to collect the purchase price of 50 cases of Film-O-Seal, a chemical substance sold to puncture proof automobile tires.

An amended complaint charged the sale and purchase of the substance for the sum of $576.50. The answer of defendants thereto denied the allegations contained therein, and also pleaded warranty of the product, breach thereof and offer to return the product, to plaintiff. Plaintiff replied admitting the warranty, but denied the breach thereof.

The trial court, without a jury, found for plaintiff and entered judgment for $547.80, against defendants, from which judgment defendants prosecute their appeal to this court.

It appears from the record, that it was stipulated upon the trial that defendants ordered, and plaintiff shipped, 50 cases of Film-O-Seal; that the agreed price was $24 a case with certain discounts, that these cases were received by defendants, who used and sold a part thereof. It was further stipulated that according to defendant’s letter, date of June 21, 1943, they had 42 cases on hand and since the writing of that . letter four additional cases had been returned to defendants and that they acknowledged their liability for four cases.

This commodity was supposed to be noninjurious to rubber and to seal punctures in automobile tires. Defendants who were jobbers put some of the merchandise in the tires on their own cars and retailed some of it to individuals and other firms, particularly to filling stations.

One of the firm, E. M. Baldridge, date of April 26, 1943 wrote to E. J. Straus, sales manager for plaintiff, to the effect that he was discontinuing business, that different dealers had said that “Film-O-Seal was O.K., ’ ’ but that if they used it they would lose their tire repair business, and that they had on hand 42 cases and asked plaintiff to give information as to disposition. There was no complaint about breach of warranty in this letter. On May 21, 1943, R. E. Frazier, one of deféndants wrote to plaintiff rather vaguely to the effect that the material had not been doing what it was represented to do. The letter also stated that they could not Esell it and asked to have it returned as it was not what they bought.

On behalf of defendants, Irwin Hassebrock, who operated a filling station, testified that he had a puncture in one tire on his own car, after placing the material therein, and that the tire went down and ruined it and the casing. He also testified that one of the tires on the car of defendant, Frazier, that had Film-O-Seal in it, was flat, after pulling a nail out of the tire. He also testified to a number of other occasions when he observed tires on the cars of his customers, that had used the material, said tires having been punctured and were flat.

Defendant R. E. Frazier testified as to punctures and blow-outs in spite of the use of Film-O-Seal.

Defendant Cecil Wooters, testified to several flat tires in Georgia, after he had used the commodity. Defendant E. M. Baldridge, also testified to a number of flat tires.

On behalf of plaintiff, and in rebuttal to the above testimony, E. J. Straus, sales manager for plaintiff company, testified that he had used Film-O-Seal and had seen it tested and knew that it would do the things represented it would do; that plaintiff had sold others Film-O-Seal out of the same lot sent defendants, and had no complaint. J. A. Weiss and H. L. Haden both testified that they were salesmen for plaintiff; that they had experience with the merchandise and that it was satisfactory.

It is assigned as error that the judgment of the trial court was against the manifest weight of the evidence. Finding of a trial court in a cause tried without a jury is entitled on review, to the same weight as the verdict of a jury, and if the evidence is contradictory, such finding will not be reversed on appeal, unless it is contrary to the manifest weight of the evidence. Keefer Coal Co. v. United Electric Coal Companies, 291 Ill. App. 477. Not alone is the evidence in the instant case conflicting, but in addition thereto, where a breach of warranty of the quality of an article sold is relied upon as a defense, the burden of proof is on the person alleging the breach to establish the warranty and the breach of it. Frasier v. Allison, 315 Ill. App. 253. We are not inclined to hold that the judgment of the trial court was against the manifest weight of the evidence.

Even, assuming that the warranty in this case was breached, defendants would be deemed to have waived any claim therefor, unless they gave notice to plaintiff within a reasonable time. Uniform Sales Act, ch. 121½, par. 49, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 121.53],

The entire evidence of defendants is rather vague as to the specific times when tires which had Film-O-Seal in them blew out and became flat. The evidence indicates that defendants put some of the merchandise in their tires and sold some of it shortly after receipt of it. The first communication that might be construed as hinting at notice of breach of warranty, was in defendants’ letter to plaintiff, after demand had been made by plaintiff for payment, in which they stated, “If you will ask either Mr. Hugo or Mr. Hassebrock you will find the trouble they have been experiencing by using this material and it has not been doing what it has been represented to do.” This was date of May 21,1943.

Plaintiff turned the claim over to an attorney for collection and upon his writing defendants, they replied in substance that plaintiff had not lived up to their agreement and that they knew what this was. Defendant Frazier testified that a representative of plaintiff called on them about helping distribute the material but there is no evidence of any complaint to him about the breach of warranty. Apparéntly the first specific complaint about the breach is contained in answer of defendants, when they were sued.

The question of what is a reasonable time for notice of breach of warrant is ordinarily a question of fact for the jury. Hesse v. Gude Bros.-Kieffer Co., 170 N. Y. S. 211; Tinius Olsen Testing Machine Co. v. Wolf Co., 297 Pa. 153, 146 Atl. 541. In the absence of a jury, this, of course, would be for the court. In that regard, we will not attempt to substitute our judgment for his.

We find no reversible error in this record. The judgment of the trial court is affirmed.

Affirmed.


text:
    Cairo Lumber Company, Inc., Appellant, v. Charles M. Corwin and Maeva Smith, Appellees.
    Heard in this court at the February term, 1945.
    Opinion filed March 5, 1945.
    Released for publication April 5, 1945.

      Francis R. Wiley, of Decatur, for appellant.
    Asa J. Wilbourn, of Cairo, for certain appellee.
    Dorothy Wilbourn, of Cairo, for certain other appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This is an action in equity brought by Cairo Lumber Company, a corporation, plaintiff appellant, who will be referred to hereinafter as plaintiff, against Charles C. Corwin and Maeva Smith, defendants appellees, who will be referred to hereinafter as defendants, to set aside conveyances of certain lots in Cairo, Illinois made by Charles M. Corwin to Maeva Smith on January 7, 1941, as being fraudulent and void and made with the intent to hinder and delay plaintiff in the collection of a certain judgment against one Kate Ladenberger.

Plaintiff filed its complaint in the circuit court of Alexander county on May 14, 1943. Answers were filed denying that the conveyances were fraudulently made; and on a hearing the court dismissed plaintiff’s bill for want of equity. All proof offered was documentary, with the exception of certain stipulations.

It appears that on February 1, 1932, Kate Ladenberger, mother of defendant, Charles M. Corwin, being indebted to plaintiff in this suit, gave to it, her promissory note in the sum of $237.50, due May 1, 1932 and on September 1, 1932, she gave it another note in the sum of $797.41 due September 1,1933. It appears that nothing was ever paid on either of these notes. At the time she executed the notes she owned 42% lots in the city of Cairo. During 1933 and 1934, she conveyed all of them to her son Charles M. Corwin.

On September 1, 1939, plaintiff took judgment against Kate Ladenberger on the two notes in the county court of Alexander county in the sum of $1,551.99 and costs of suit. Execution was thereafter issued and returned unsatisfied. •

On October 11, 1939, plaintiff filed its complaint in the circuit court of Alexander county,. Illinois, against Kate Ladenberger and Charles M. Corwin, asking to have the above transfer of lots from Kate Ladenberger to the son, Charles Corwin, set aside, as being made without any consideration and with the fraudulent intent to hinder and delay plaintiff in the collection of its judgment against her, and on a hearing the court dismissed plaintiff’s bill for want of, equity. Plaintiff perfected its appeal to the Supreme Court, but without obtaining supersedeas, and the Supreme Court transferred the cause to this court, and on November 1, 1941, the Appellate Court reversed the trial court and held the conveyances were fraudulently made by Kate Ladenberger. (Cairo Lumber Co., Inc. v. Kate Ladenberger and Charles M. Corwin, 313 Ill. App. 1). In conformance with the mandate of the Appellate Court a decree was entered finding the conveyance by Kate Ladenberger to Charles Corwin was fraudulent and void. The conveyances to defendant Maeva Smith, which are involved in the instant suit, and which included some of the same property were made while the case against Kate Ladenberger and Charles M. Corwin was pending on review in this court.

Two alleged errors are relied upon for reversal; the refusal by the trial court to hold null and void the conveyances made by Corwin to Maeva Smith and the refusal of the court to grant plaintiff’s motion for continuance.

It is contended by plaintiff that under par, 53 of the Chancery Act and the doctrine of lis pendens, the conveyances made while the appeal was pending of property to which the reviewing court held he had no title ab initio are null and void. Paragraph 53 of the Chancery Act, ch. 22, Ill. Rev. Stat., 1943 [Jones Ill. Stats. Ann. 106.18], provides: “That every suit in equity, proceeding to sell real estate of decedent to pay debts or other suit in the nature of suits in equity, affecting or involving real property shall, from the time of the filing of the complaint or petition, be constructive notice to every person subsequently acquiring an interest in or a lien on the property affected thereby, and every such person and every person acquiring an interest or lien as aforesaid, not in possession of said property and whose interest or lien is not shown of record at the time of filing such complaint or petition, shall, for the purposes of this Act, be deemed a subsequent purchaser and shall be bound by the proceedings to the same extent and in the same manner as if he were a party thereto. . . .”

It is the contention of counsel for defendants, that the facts presented by .the instant case give rise to the exact situation which section 76 of the Civil Practice Act was intended to cover. Section 76 [par. 200], ch. 110, Ill. Rev. Stats. 1943 [Jones Ill. Stats. Ann. 104.076], provides as follows: “Where an appeal is perfected or allowed . . '. the reversal or modification of such order, decree-, judgment or other determination shall not affect the right, title or interest in or to any real or personal property of any party, not a party to such action, acquired after the entry of such order, decree, judgment or other determination, but before such appeal operates as a supersedeas under the provisions of this Act.”

While it is true that section 94 of the Practice Act [Ill. Rev. Stat. 1943, ch. 110, par. 218; Jones Ill. Stats. Ann. 104.094] enumerates certain acts repealed, and paragraph 53 relied upon by plaintiff was not therein included, the Act further provides that, “All other Acts and parts of Acts inconsistent with this Act are hereby repealed.” As a result, insofar as the two acts in question are inconsistent, par. 53 o£ the Chancery Act is repealed and the general doctrine of lis pendens does not apply because of the specific application of section 76 of the Practice Act.

It has always been the policy of the law in this country to provide for free alienation of land, and the legislature, evidently pursuant to that policy and to protect ‘the. interest of those not involved in the litigation, enacted the above section of the Practice Act. In the recent case of Aneateau v. Commercial Casualty Ins. Co. of Chicago, 318 Ill. App. 553, the court said, “These provisions, (Section 76) are manifestly for the protection of persons not parties to the suit, where no supersedeas has been issued. It is evident that when a judgment is in process of appeal it is not final, even though third persons, not parties to the action, are protected thereby in rights they may acquire under it in the absence of a supersedeas. The protection is afforded such third persons only because of the fact that the judgment is not final for if it were final, there would be no occasion for the protection. It is not conceivable that the legislature meant to protect third parties in rights acquired while no supersedeas was in operation, and at the same time subject them to an assault upon their existing rights during the same period.”

When the plaintiff in the ease at bar brought its original suit against Ladenberger and Corwin one of defendants in the instant suit, the trial court dismissed it for want of equity. Corwin later conveyed part of the property to Maeva Smith, codefendant in the present suit; which conveyances were made prior to the reversal of the lower court’s order. The appeal was not made a'supersedeas. We áre of the opinion that under those conditions the trial court was correct in dismissing plaintiff’s suit against defendants as under section 76, defendant Smith’s title to the property was unaffected by the reversal of the trial-court’s order.

Counsel for plaintiff maintain that section 76 applies only to a judicial sale and not to a private sale of property. We are not inclined to so hold, because section 76 makes a separate provision to apply to title acquired through judicial sale. The sentence directly following the provision above quoted in this opinion reads as follows, “Nor shall any such reversal or modification affect any right of any person not a party to such action under or by virtue of any certificate of sale issued before such appeal operates as a supersedeas, pursuant to a sale based on such order, decree, judgment or other determination.”

On May 9, 1944, when the case was called for trial plaintiff’s attorney made a motion for continuance, on the ground that he wanted to call defendant Maeva Smith for cross-examination under section 60 of the Civil Practice Act [Ill. Rev. Stat. 1943, ch. 110, par. 184; Jones Ill. Stats. Ann. 104.060]. The refusal of the'trial court to allow the motion for continuance is assigned as error. The motion contained .no statement that affiant had any expectation of procuring the testimony of the witness in the future, in the event of continuance being granted. Supreme Court Rule 14 (ch. 110, par. 259.14, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 105.14]) fixes the requirements for an affidavit supporting a motion for continuance and, among other things, affiant must show therein, “. . . that if further time is given such evidence can be procured.” The law requires the affidavit to set forth the facts on which the expectation is based that the witness will be present or that his attendance will be procured. People v. Oasner, 152 Ill. App. 54; Dacey v. People, 116 Ill. 555; Wilhelm v. People, 72 Ill. 468. It would be erroneous to grant a continuance unless there was a reasonable prospect of obtaining the desired evidence at some future time. Richardson v. People, 31 Ill. 170.

Plaintiff contends however, that because of the fact that section 60 of the Practice Act provides that on the trial of any case, any party may be examined, as if under cross-examination, at the instance of the adverse party, that a different rule obtains than in the case of a witness attempted to be produced, but not under section 60. We see no difference in principle. Section 60 provides that the party may be examined, . . and for that purpose may be compelled in the same manner ... to testify.” Section 62 of the same Act [Ill. Rev. Stat. 1943, ch. 110, par. 186; Jones Ill. Stats. Ann. 104.062] provides for the issuing of subpoenaes for any such witness. Any different rule might result in indefinite delays. The object of granting a continuance is that justice may be done by permitting a party to procure the testimony of a witness, and unless the witness could be produced at the time to which the cause was continued, the continuance would result in delay in the administration of the law and subserve no good end. Dacey v. People, supra. Granting of a motion for a continuance based upon the absence of a witness is a matter left to the discretion of the trial judge, whose action will not be set aside unless there has been an abuse of judgment. Bummers v. Hendricks, 300 Ill. App. 498. We do not believe that the court abused its discretion in denying the continuance.

We find no reversible error in the record and the judgment of the trial court will -be affirmed.

Affirmed.


author: Mr. Justice Stoke

text:
    J. W. Pinkley, Appellee, v. Allied Oil Corporation of Illinois, Appellant.
    Heard in this court at the February term, 1945.
    Opinion filed March 5, 1945.
    Released for publication April 5, 1945.

      Joseph G. Gorman, of Chicago, for appellant; Well P. Welker, of Vandalia, and Owen Rall, of Chicago, of counsel.
    Will M. Albert, of Vandalia, for appellee.
   Mr. Justice Stoke

delivered the opinion of the court.

This is an appeal by Allied Oil Corporation of Illinois, appellant, hereinafter called defendant, from a judgment in the sum of $5,810.98, plus attorney’s fee of $500, in a suit brought by J. W. Pinkley, appellee, hereinafter called plaintiff, to recover under the federal Fair Labor Standards Act, amounts due for alleged overtime work performed by plaintiff between February 15, 1940 and April 2, 1943. The case was tried by the court, without a jury on amended complaint and answer and amendment thereto.

The pleadings admitted defendant was engaged in the production of goods for commerce and that plaintiff and defendant were bound by the provisions of the Fair Labor Standard Acts of 1938.

It appears that plaintiff was employed by defendant to work at its refinery at St. Elmo, on the 14th of February 1940, as night watchman. Plaintiff testified that he was employed by C. L. Withers, superintendent of the plant to work 12 hours a day, 7 days a week, at the rate of 55 cents an hour and overtime. Withers testified that at the time of the hiring, the agreement was that plaintiff was to work 8 hours a day from 8 o ’clock at night until 4 o ’clock in the morning, as he recalls it. It is undisputed that at no time during the period of plaintiff’s employment was he paid at the rate or for the number of hours, he testified to. On July 16, 1941, the pay of plaintiff was raised to 20 cents an hour, and in September 1942, the pay was changed to $150 a month.

Plaintiff testified that on February 15, 1940, he commenced to work and worked continuously from thence to April 2,1943, including all Sundays and holidays, working each and every day for 12 hours, beginning at 6 in the evening until 6 in the morning. In this, in the main, he was corroborated by many witnesses, some of whom were or had been employed by defendant company.

Plaintiff claimed that every day that he worked for defendant, he filled out a watchman’s report, showing that he worked 12 hours a day, which report was handed to the timekeeper. Demand was made upon defendant for the production of these reports and counsel for defendant stated in open court that defendant did not preserve them and did not have them.

It is alleged as error but not argued by defendant that the trial court erred in permitting plaintiff to contradict his own witness, as to the form of the watchman’s report. Where a party objects in his brief on appeal to rulings of the trial court but gives no reasons or arguments and cites no authorities to support his objections, they will be considered to be waived. Joseph Schlitz Brewing Co. v. Mahozki, 108 Ill. App. 511.

Principal other error assigned is that the'trial court erred in finding the issues in favor of plaintiff and in entering judgment against defendant. This suit is brought under the federal Fair Labor Standards Act of 1938 (52 Stat. at L. 1060, c. 676, 29 USCA §§ 201-219) which restricted “normal” hours of labor from October 24, 1938, to October 23, 1939, to 44 hours per week, from October 24, 1939 to October 23, 1940 to 42 hours per week, and from October 24, 1940, forward, to 40 hours per week.

Section 7 of the Act provides that “no employers shall . . . employ any of his employees who is engaged in (interstate) commerce or in the production of goods for (interstate) commerce . . . (3) for a workweek longer than forty hours after . . . (October 23, 1940) unless such employee receives compensation for his employment in excess of the hours specified' at a rate not less than one and one-half times the regular rate at which he is employed.”

Section 16 (b) provides that any employer who violates the provisions of section 7 shall be liable to the employees in the amount of their unpaid overtime compensation and in an additional equal amount as liquidated damages and also to a reasonable attorney’s fee.

It is conceded by counsel for defendant that the evidence showed without substantial dispute that from February 15, 1940 to' April 2, 1943, plaintiff worked as night watchman from about 6 o’clock in the evening until about 6 o’clock the following morning, and that the dispute in this case is whether the plaintiff was hired to work such period of time. Plaintiff testified that he was employed by C. L. Withers to work 12 hours a day, 7 days a week at the rate of 55 cents per hour and overtime, which was denied by Withers who claimed he was hired to work 8 hours. Where testimony merely conflicts reviewing court will not substitute its judgment for that of the trial court. Chamblin v. New York Life Ins. Co., 292 Ill. App. 532; Shapleigh Hardware Co. v. Enterprise Foundry Co., 305 Ill. App. 180; Floyd v. Estate of Smith, 320 Ill. App. 171; Winer v. Eckerling, 323 Ill. App. 421, 55 N. E. (2d) 876.

The contract of hiring is not particularly material, for even where there is an agreement between employer and employee, that the latter work a number of stipulated hours, not to exceed that prescribed by the law, it will not avail the employer in an action to recover unpaid overtime compensation under the Fair Labor Standards Act, providing the evidence shows that the employee actually worked more than the number of hours agreed upon. Johnson v. Dierks Lumber & Coal Co., 130 F. (2d) 115.

It is-contended by defendant that by accepting checks (which did not include any overtime) extending over the period of his employment, that plaintiff thereby estopped himself from advancing his version of his employment contract. In the light of the decision of the Federal court in the Johnson case, which directly involved an interpretation of the Fair Labor Standards Act, this would also be immaterial. In addition thereto waiver and estoppel must be pleaded in the initial pleading. Moore for use of St. Louis Joint Stock Land Bank v. National Fire Ins. Co. of Hartford, 275 Ill. App. 1; Feder v. Midland Casualty Co., 316 Ill. 552 and estoppel was not pleaded specially by defendant.

The matter of assessment of damages, in the absence of a jury, was for the court. Where case is tried before the court without a jury, it is the court’s province to judge facts as presented by the evidence. Blake for use of Richardson v. Union Insurance Exchange, 317 Ill. App. 199. Unless this court could say that the trial court’s findings are contrary to the manifest weight of the evidence we would not be justified in reversing his findings.

After a review of all the evidence in the case, it is our conclusion that the court properly rendered judgment against defendant company. The judgment of the trial court is hereby affirmed.

Affirmed.


author: Justice Kiley.

text:
    People of State of Illinois, Defendant in Error, v. Frank Braune, Impleaded, Plaintiff in Error.
    Gen. No. 43,198.
    Heard in the third division, first district, this court at the October term, 1944;
    opinion filed February 14, 1945;
    released for publication March 5, 1945.
    Meyers, Siegal, Charlens & Seyfarth, for plaintiff in error; Morris Gordon Meyers, of counsel;
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Kiley.

Not to be published in full.


text:
    Julius Zweig, Appellant, v. L. A. Goldreich, Appellee.
    Gen. No. 43,295.

      Heard in the third division, first district, this court at the December term, 1944;
    opinion filed February 14, 1945;
    released for publication March 5, 1945.
    Ruben-stein & Becker, for appellant;
    Brown & West, for appellee.
   Opinion by

Justice Kiley.

" Not to be published in full.


author: Presiding Justice Dady.

text:
    Aldo O. Mondin, by Virginia Mondin, Guardian; Appellant, v. Decatur Cartage Company, and Mary Scariot, Administrator of Estate of George John Scariot, Deceased, Appellees.
    Gen. No. 9,457.
    Heard in this court at the February term, 1945;
    opinion filed February 28, 1945;
    released for publication March 27, 1945.
    J. D. Wilson and N. Murry Edwards, for appellant;
    Omer Poos, for certain appellees; Lester K. Vandever, for certain other appellee; Ralph A. Vandever, of counsel.
   Opinion by

Presiding Justice Dady.

Not to be published in full.


author: Justice Hayes.

text:
    Herald Hiram Cummings, Appellee, v. Fred Stella and Glenn Stella, Trading as Stella Baking Company, Appellants.
    Gen. No. 9,456.
    Heard in this court at the February term, 1945;
    opinion filed February 28, 1945;
    released for publication March 27, 1945.
    Steely, Steely, Graham & Dysert, for appellants;
    Watler V. Dysert, of counsel; John R. Dean, for appellee.
   Opinion by

Justice Hayes.

Hot to be published in full.


author: Justice Riess.

text:
    Grace L. Seaborn and Delma Mink, Substituted for R. E. Seaborn, Deceased, Appellants, v. Town of Hadley, Pike County, Illinois, Appellee.
    Gen. No. 9,448.
    Heard in this court at the February term, 1945;
    opinion filed February 28, 1945;
    released for publication March 27, 1945.
    Graham & Graham, for appellants;
    A. W. Schimmel, for appellee.
   Opinion by

Justice Riess.

Hot to be published in full.


author: Presiding Justice Bristow.

text:
    P. T. Chapman, Administrator of Estate of Harold B. Walker, Deceased, and Administrator of Estate of Elmer J. Rhonemus, Deceased, Appellee, v. Bruton Incorporated et al., Appellants.
    Heard in this court at the February term, 1945;
    opinion filed March 5, 1945;
    released for publication April 5, 1945.
    Max Sigoloff, E. A. Biggs and D. L. Duty, for appellants;
    C. Ross Reynolds, Charles J. Huffman, and .Glenn, Real & Browning, for appellee; Raymond G. Real, of counsel.
   Opinion by

Presiding Justice Bristow.

Not to be published in full.


author: Justice Culbertson.

text:
    People of State of Illinois, Defendant in Error, v. Charles Britt, Plaintiff in Error.
    Heard in this court at the February term, 1945;
    opinion filed March 5, 1945;
    released for publication April 5, 1945.
    Ulys Pyle, for plaintiff in error; Julius Reznik, of counsel;
    Ben H. Townsend, for defendant in error.
   Opinion by

Justice Culbertson.

Not to be published in full.


text:
    Loyd Hedden, Appellee, v. Fanners Mutual Re-Insurance Company of Chicago, Appellant.
    Heard in this court at the February term, 1945;
    opinion filed March 5, 1945;
    released for publication April 5, 1945.
    James A. Watson, for appellant;
    Grover E. Holmes, for appellee.
   Opinion by

Justice Culbertson.

Hot to be published in full.


text:
    John Brady, Administrator of Estate of Arthur S. Watson, Deceased, Appellee, v. Illinois Agricultural Mutual Insurance Company, Appellant.
    Heard in this court at the February term, 1945;
    opinion filed March 5, 1945;
    released for publication April 5, 1945.
    Will P. Welker, for appellant;
    Will M. Albert, for appellee.
   Opinion by

Justice Culbertson.

Not to be published, in full.


text:
    Rela Anderson, Appellee, v. Verus Wright, Appellant.
    Heard in this court at the February term, 1945;
    opinion filed March 5, 1945;
    released for publication April 5, 1945.
    Lackey & Lackey, for appellant;
    Sumner & Lewis, for appellee.
   Opinion by

Justice Culbertson.

Not to be published in full.


author: Mr. Justice Kiley

text:
    Mary Gibbons, Appellee, v. Jack Cannaven, Defendant. Hugo E. Brandt et al., Appellants.
    Gen. No. 42,977.

      Heard in the third division of this court for the first district at the February term, 1944.
    Opinion filed March 5, 1945.
    Rehearing denied April 10, 1945. Released for publication April 10, 1945.
    Lord, Bissell & Kadyk and Martin, Ullmann & Brown, all of Chicago, for appellants.
    John H. Gately, of Chicago, for appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

This is a dram shop action in which plaintiff Mary Gibbons had verdict and judgment December 1, 1942 for $12,000 against Cannaven. He has not appealed. Hugo and Ruth Brandt and Mary Allgeyer, referred to herein as petitioners, owners of the property in which the tavern was operated, were not parties to the action "but were granted leave to appeal after 90 days (Chap. 110, Par. 200 [Jones Ill. Stats. Ann. 104.076]) by this court. Plaintiff’s motion, made here, to dismiss the appeal, was taken with the case.

Plaintiff sued under Section 14 of Article 6 of the Dram Shop Act (Chap. 43, Par. 135, Ill. Rev. Stats. [Jones Ill. Stats. Ann. 68.042]) to recover a personal, judgment against Cannaven only. Having recovered the judgment, she sued under Section 15, Article 6 of the Act (par. 136 [68.043]), in the Circuit Court of Cook County in an equitable proceeding to enforce the lien of the judgment against the premises in which the tavern was operated. That proceeding was removed to the United States District Court for the Northern District of Illinois, Eastern Division on motion of petitioners’, nonresidents of Illinois, and is now pending in that court.

Sections 14 and 15 of the present Dram Shop Act are substantially the same as sections 9 and 10, respectively, of the previous Act. Under section 14, plaintiff had the alternatives of suing Cannaven only or of suing petitioners only, or of suing Cannaven and petitioners jointly. (Wall v. Allen, 244 Ill. 456.) Having chosen to sue Cannaven only for damages and having recovered judgment against him, plaintiff had the right to sue petitioners under section 15 of the Act to enforce the lien of that judgment against the premises owned by them and leased to Cannaven. (Wall v. Allen; Garrity v. Eiger, 272 Ill. 127.) This latter right presents the peculiarity of section 15 which renders the premises of petitioners used as a tavern by Cannaven liable for plaintiff’s judgment against him even though petitioners were not parties to the suit under section 14. Petitioners’ claims to an appealable interest and to the right to complain of errors in the trial of plaintiff’s suit under section 14, arise out of this peculiar right granted by section 15. They say they have an appealable interest, although not parties, because they are injured by the judgment; and that the ordinary rule that errors not objected to at the trial are waived, does not apply to bar our consideration of the errors assigned by them since they had no opportunity to object, no notice of the trial and no chance to intervene. They seek to have the judgment against Cannaven reversed, in this court because of alleged errors in instructing the jury, and prejudicial argument by plaintiff’s counsel which they say misled and confused the jury on the question of the amount of damages. Plaintiff’s motion to dismiss is vital to this decision.

Our Supreme Court in Wall v. Allen, and Garrity v. Eiger, and the United States Supreme Court in affirming the Eiger case, 246 U. S. 97, decided that, because of the evils inherent in the alcoholic liquor traffic, section 10 (section 15) was a proper exercise of police power and did not amount to taking property without due process of law. It is true that in those cases the appeals were from decrees under section 10 (section 15) and not from judgments under section 9 (section 14). The instant issue appears to be novel in this State. In the proceeding to enforce the lien of her judgment against Cannaven, plaintiff is required to prove only that petitioners leased the premises for, or knowingly permitted therein, the sale of alcoholic liquor; and that a judgment has been recovered against Cannaven, their lessee, in consequence of the sale of alcoholic liquor on the premises. Wall v. Allen; Garrity v. Eiger. By subjecting the premises to use for sale of alcoholic liquor, petitioners made the premises surety for the payment of judgment against Cannaven, but that cannot require proof of the facts which rendered Cannaven liable, and .in the absence of a showing that it was obtained by fraud and collusion, petitioners are concluded by the judgment. Garrity v. Eiger, 272 Ill. 127.

Section 14 plainly gave Mary Gibbons the choice of suing Cannaven alone. She was not required to sue petitioners. Had they sought to intervene, the trial court would have erred in giving them leave to do so, because to do so would be to vitiate plaintiff’s choice and to frustrate the clear intention of the legislature. Having had no right to intervene in the trial court, petitioners had no right to object to any errors committed in the trial of plaintiff’s suit against Cannaven. Since petitioners had no right to intervene or to object in the trial court, they were not entitled to an opportunity to object. There is no question, therefore, of a waiver of their right to object. These considerations are sufficient to distinguish cases cited by petitioners not involving the kind’ of action nor circumstances like those presented here.

Had plaintiff sued and recovered against petitioners under section 14 all of their property, not exempt, would be subject to payment of the judgments against them, and she would not be limited under section 15 to the tavern premises. Had petitioners been made parties, in the damage suit under section 14, plaintiff would have had to prove in addition to the elements necessary to her case against Cannaven, that petitioners leased their premises to Cannaven for, or knowingly permitted therein, the sale of alcoholic liquor which contributed to the intoxication. Before plaintiff can enforce the lien of her judgment against petitioners’ premises under section 15, she must make that proof. Petitioners argue that the defense to plaintiff’s damage suit was indifferent. This charge and its graver implication are matters which may be offered as evidence tending to show that there was fraud or collusion in the obtaining of the judgment. It may be that plaintiff’s suit to enforce the lien, may fail. If it fails petitioners are not injured. They contend that they have been injured already, since the lien of the judgment against Cannaven is already a cloud upon their title to the premises affecting the value and marketability. We believe that the legislature must be considered to have foreseen this probability, for the courts have charged a property owner under these circumstances with knowledge of the possible consequences which he may suffer as a result of his part in the alcoholic liquor business. Wall v. Allen; Garrity v. Eiger.

We are of the opinion that petitioners have no appealable interest in the judgment sought to be reversed, and they have no right to attack plaintiff’s judgment in this proceeding. The motion to dismiss the appeal is allowed and the appeal is accordingly, dismissed.

Appeal dismissed.

Burke, P. J., and Lupe, J., concur.


author: Mr. Presiding Justice Bristow

text:
    Arthur L. Rauschkolb, Executor of Estate of John B. Kissel, Deceased, and Individually, Appellees, v. Estelle Rebhan Ruediger, Executrix of Estate of Dina Kissel, Appellant.

      Heard in this court at the February term, 1945.
    Opinion filed March 14, 1945.
    Released for publication April 14, 1945.
    W. E. Knowles, of East St. Louis, for appellant.
    Johnson & Johnson, of Belleville, for appellee.
   Mr. Presiding Justice Bristow

delivered the opinion of the court.

Dina Kissel, a resident of Belleville, Illinois, died April 16, 1934, leaving both real and personal property and a last will and testament which was admitted to probate in St. Clair county, Illinois. The fifth and seventh paragraphs of said will, with certain omissions indicated, are in the following words: “Fifth: I hereby empower and direct my executrix to sell the one-half interest of the farm of which I am possessed, being located south of Belleville, on the old Freeburg Road, and that out of the proceeds of said salé, which can be either public or private, my Executrix shall pay to the following persons, the following amounts: Stella Rebhan Ruediger, the sum of Five Thousand Dollars, ($5,000.00); to Frieda Mueller, niece, the sum of One Hundred Dollars; . . . (Here follows like wording of various amounts to various named persons) and to issue a deed for said property.” . . . “Seventh: I give, devise and bequeath, all the remaining of my property, both real and personal, of whatever kind or nature, unto John Kissel, to have and to hold forever, which shall include any balance that may remain from the sale of my farm as hereinbefore provided.” The sixth clause of her will bequeaths to John Kissel, her husband, real estate located on East , B street, Belleville.

John B. Kissel died testate, January 8, 1935, and appellee Arthur L. Rausehkolb was appointed and qualified as executor of his will.

Appellant, Estelle Rebhan Ruediger, qualified as executrix of the estate of Dina Kissel, deceased, and collected cash and crop rents from the undivided interest in farm lands owned by decedent at her death. At the date the present suit was instituted, this executrix had $819.46 in her hands as such rents received. Appellant, as executrix, in two separate sales, sold the farm lands owned by Dina Kissel, and made distribution from the proceeds of such sales to the various named legatees under the fifth clause of the will above referred to, in the total amount of $5,628. This left a deficit of $1,072 on the total amount designated in the fifth clause remaining due the legatees therein named. $853.25 remains in her hands as proceeds of said sales.

. Appellee instituted suit for construction of the Dina Kissel will, to which answers and a cross bill were filed. The pleadings raise questions as to whether these legacies were specific or demonstrative; whether they drew interest; whether they abated pro rata; whether they carried with them the rent monies as accretions; whether they were subject to the costs of the sales and whether John Kissel or the executor of the estate of Dina Kissel took these rents. The decree found that the legacies in question were specific; that they were payable only out of the proceeds of the sales; that they did not draw interest; that they were subject to the payment of the costs of the sales ; that they abated pro rata; and that John Kissel was entitled to rents collected.

The Dina Kissel will provides that: “Out of the proceeds of said sales . . . my executrix shall pay the following persons the following amounts.” There are no other words in the will providing for the payment of these named legatees except in the fifth clause. Appellees contend these legacies are specific. Appellant contends they are demonstrative, and any deficit is payable out of the rents and general assets of the estate.

General assets of an estate are not liable for the payment of a deficit of a specific legacy. 3 Woerner on Administration, 3rd Ed., sec. 444. In Baker v. Baker, 319 Ill. 320, 324, a will provides: “I hereby will and bequeath to . . . Church, the sum of five hundred dollars, the same to be paid out of any moneys or notes which I may have on hand at the time of my death, and all the rest and residue ... I give to . . . .” In construing this will, the court held that the gift to the Church “is not simply made a charge against the moneys and notes of testatrix, but there is a specific direction that it shall be paid out of such fund. It seems clear, therefore, that these legacies cannot under any circumstances become charges against the general assets of the estate, and therefore they are neither demonstrative nor general legacies.” The court concluded that, the legacy being specific, it should abate and contribute ratably for the payment of debts and charges against the estate.

Appellant contends that the case of LenZen v. Miller, 378 Ill. 170, overrules Baker v. Baker, supra, and lays down a contrary rule, and being a later case, should be followed by this court. We do not think it overrules Baker v. Baker, but instead cites it with approval. In Lensen v. Miller, the court particularly distinguishes the gift there, to be a demonstrative legacy from the words of the will and certain circumstances surrounding the contemplated mortgage when the will was made. At page 176, the court particularly pointed out the words of that will to be, “I give, devise and bequeath to my niece, . . . $2,000.00,” as indicating the intent to give the niece that amount and the court said “The quoted part could not be given a construction other than that it is a bequest of $2,000.00 and payable as a general legacy.”

The will of Dina Kissel did not give any certain amount to a certain legatee and then direct that same be paid out of a fund. It directed that the farm lands “be sold” and “out of the proceeds of said sale” the executor should pay certain persons certain designated amounts and the balance of the proceeds under the seventh clause to John Kissel. These legacies were parts, and all of the parts, of a particular fund which the Dina Kissel will distinguished from all the rest of her estate of the same kind. The gift outright in the case of Lenzen v. Miller was the distinguishing provision that determined the court in that case to designate it as a demonstrative legacy. It is our opinion that the legacies in the fifth clause of the Dina Kissel will are specific legacies.

The Dina Kissel will did not give the farm to the executor as trustee. It directed and empowered the executor to sell the lands and apply the proceeds. The executor took a power only and not an estate in the land. Emmerson v. Merritt, 249 Ill. 538, 541. Appellant, as executor, did not take the. legal title to this farm land. Buckner v. Carr, 302 Ill. 378, 385. The legacies in the fifth clause were legacies of money. The legatees had no interest in the land. Buchner v. Carr, supra. Their interest could not be subject to judgment against the land. Darst v. Swearingen, 224 Ill. 229, 233.

In Meily v. Knox, 269 Ill. 463, a codicil to the will devised lands and personal property to a sister with power to sell same and directed her to distribute the proceeds from the sale of the Ohio land, subject to specific legacies in clause 3 of the will, as far as the proceeds would go and in the order indicated. The third clause contained bequests in specified amounts of money to named persons. It was contended that the bequests were demonstrative legacies. The court held that there was no gift to the persons named aside from the direction to distribute the proceeds and that there was nowhere in the will any evidence of an intention to give the persons named any amount except such as might be received from the sale of the real estate. The real estate having been conveyed by testator, the court held there was no basis left for said legatees to claim any interest in the estate. The Dina Kissel will contains like directions and has no other intention except to distribute the proceeds of the sale of the farm lands as far as they would go. Appellant has cited, quoted, and forcefully argued a number of cases. We have read all of these cases and do not believe they are determinative of the questions presented in the instant case. These cases hold that such devise of proceeds of sale is personal property; that the land would not be subject to partition by heirs or legatees, nor by attachment upon a debt of a distributee and that such a devisee could not pass his interest by deed to a part of the land. One case relied on, Daniels v. Brooks, 377 Ill. 44, provided that a sale should be made to pay costs, expenses and debts and to make distribution, and the court held that in such case the words were more than granting a power of sale.

The next question is whether the legacies should abate pro rata and be subject to expenses of the sales, since the total proceeds were less than the total amount of the specific legacies. We are of the opinion that they do abate pro ratably and are chargeable with the expenses of the sales. Baker v. Baker, 319 Ill. 320, 324.

Appellant strenuously contends that the rents on hand are accretions to the legacies and should go pro ratably to the legatees. She cites many authorities in reference to income and profits from trust funds. We have read all the cases cited and noté the theory of appellant, but we do not believe that such cases cited are controlling here. Counsel cited State Bank of Chicago v. Gross, 344 Ill. 512, 519. Examination of that authority shows that the will created a trust fund with directions for investment. And in Howe v. Hodge, 152 Ill. 252, a gift of the balance, including the rents, was made. The Kissel will in principle is quite dissimilar. Examination of other cases cited show them distinct from the principles here involved. The rents in this case are not accretions to the specific legacies. Only a power of sale and distribution of proceeds has been given appellant as executor. Kents go to heirs and the administrator who may sell the real estate is not entitled to rents nor can an heir be compelled to return rents for payment of debts. Kents go to the residuary beneficiary, John Kissel, under the seventh clause of this will. He having died, the same will be distributed to appellee as executor of his estate. Moore v. Smith, 298 Ill. App. 417, 420; Emmerson v. Merritt, 249 Ill. 538, 543; McCarty v. McCarty, 356 Ill. 559, 561; Green v. Massie, 13 Ill. 363; Foltz v. Prouse, 17 Ill. 487.

Counsel have conceded that if the legacies in the fifth clause of the Dina Kissel will are specific legacies, they do not draw interest. We have so determined and find the legatees are not entitled to interest.

Counsel for appellant has assailed other conclusions reached by the lower court, but failing in his brief to argue same or supply the court with any authority in support thereof, his assignment of error may be treated as abandoned. Error assigned, but not argued cannot be considered by a reviewing court. People v. Phelps, 388 Ill. 618, 58 N. E. (2d) 615.

We find no error in the decree. The decree should be and accordingly is affirmed.

Decree affirmed.


author: Mr. Presiding Justice Burke

text:
    Standard Discount Company, Inc., Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 43,052.

      Heard in the third division of this court for the first district at the April term, 1944.
    Opinion filed March 21, 1945.
    ¡Rehearing denied April 10, 1945. Released for publication April 10, 1945.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellant; Nathaniel Rubinkam and Melvin L. Gtbbard, both of Chicago, of counsel.
    Victor H. Bloom, of Chicago, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On January 14, 1924 the Metropolitan Life Insurance Company issued its industrial policy for $276 on the life of Adam Wawrzyniak, 46 years of age, the stipulated weekly premium being 30^. In consideration of the weekly premium and subject to the “conditions below” and on page 2 of the policy, each made a part thereof, and “contracted by the Insured and every person entitled to claim hereunder to be a part hereof,” the company agreed to pay “upon receipt of proofs of the death of the Insured made in the manner, to the extent and upon the blanks required herein, and upon surrender of this Policy and evidence of premium payment hereunder, the amount stipulated in said schedule, to the executor or administrator of the Insured, unless payment be made under the provisions of the next succeeding paragraph.” The amount stipulated in the schedule is $276. The “succeeding paragraph” reads:

“The Company may make any payment or grant any non-forfeiture privilege provided herein to the Insured, husband or wife, or any relative by blood or connection by marriage of the Insured, or to any other person appearing to said Company to be equitably entitled to the same by reason of having incurred expense on behalf of the Insured, or for his or her burial; and the production of a receipt signed by either of said persons, or of other proof of such payment or grant of such privilege to either of them, shall be conclusive evidence that all claims under this Policy have been satisfied. ’ ’

The policy also contains the following clause: “Any assignment or pledge of this policy or of any benefits hereunder shall be void and of no effect.”

On October 10, 1931 the insured executed the following written request:

“I hereby request the Metropolitan Life Insurance Company to pay the death benefit in accordance with the terms of the above mentioned policy to Stanislawa Wawrzyniak, address 5001 So. Loomis, Relationship, Daughter, Occupation, H. Work, Age, 16, subject, however, to the provision in the policy authorizing payment at the Company’s option to my executor or administrator, or to any of my relatives by blood, or connections by marriage, or to any other person appearing to said Company to be equitably entitled to the same by reason of having incurred expense on behalf for my burial.”

The company complied with the request and the policy was indorsed as follows: “Subject to the provision of the policy authorizing payment at the Company’s option to other persons, Stanislawa Wawrzyniak —daughter—has been designated beneficiary, to receive the death benefit only.” Adam Wawrzyniak, the insured, died January 27, 1943. The beneficiary, Stanislawa Wawrzyniak, his daughter, who had reached her majority, made the funeral arrangements with a mortician named Henryk A. Parka. The Standard Discount Co., Inc., is in the business of making loans to morticians for funerals conducted by them. On January 28, 1943 Stella Wawrzyniak executed a document purporting to assign all her right, title and interest in the policy on the life of her father to Standard Discount Co., Inc. In the instrument she also appointed that corporation her attorney in fact to act for her in making collection of the amount of the policy. Parka also assigned to Standard Discount Co. Inc., his “interest” in the “assignment.” On the same day Standard Discount Co., Inc., forwarded the assignment to the home office of the insurance company and requested payment of the amount of the policy. On February 4, 1943 the insurance company replied, declining to honor the assignment. On June 25, 1943 Standard Discount Co., Inc., filed a statement of claim in the municipal court of.. Chicago against the Metropolitan Life Insurance Company and alleged that pursuant to the policy, the proofs submitted and the assignment, it should have judgment for $276,. together with any dividends payable under the policy, statutory attorney’s fees and interest from January 28, 1943. Answering, defendant admitted that the policy was in force at the time of the insured’s death; that it received proofs of death and a claim for the proceeds; denied that Stanislawa Wawrzyniak was the beneficiary or entitled to the proceeds; asserted that the policy designates the executor or administrator as the proper party plaintiff; asserted invalidity of the assignment because of the , clause that any assignment or pledge of the policy or any of the benefits thereunder shall be void and of no effect; and denied that its refusal to pay was unreasonable or vexatious. A trial before the court without a jury resulted in a finding and judgment for plaintiff and against defendant in the sum of $302.78, to reverse which this appeal is prosecuted.

Defendant urges that the provision that any assignment or pledge of the policy or of any benefits thereunder shall be void and of no effect, renders the assignment void. Plaintiff maintains that a provision in a policy of insurance prohibiting assignment applies only to assignments before but not after death, and that the interest of the beneficiary following death of assured is a vested one. In Standard Discount Co., Inc. v. Metropolitan Life Ins. Co., 321 Ill. App. 220, the court said (224):

“We hold it to be the law of this State that upon the death of an insured under a life insurance policy the proceeds are vested in the beneficiary and that any provision in the contract that the beneficiary may not assign the same is invalid.”

In the recent case of Lain v. Metropolitan Life Ins. Co., 388 Ill. 576, our Supreme Court said (580):

“The rule applicable was announced in the Ginsburg case, [328 Ill. 571] and was properly followed in Standard Discount Co. v. Metropolitan Life Ins. Co., 321 Ill. App. 220.”

Defendant maintains that the provisions of the facility of payment clause are effective, even though some persons made an assignment of an alleged interest. Plaintiff replies that where insurer makes no payment under the provisions of a “facility of payment” clause, such clause is ineffective as against the claim of a named beneficiary. From the statement of facts in the case of McDaniels v: Western & Southern Life Ins. Co., 332 Ill. 603, it appears that on July 6, 1925, defendant issued an industrial policy on the life of Dora McDaniels, Sr., for $165; that Dora McDaniels, Jr., a niece of insured, paid all premiums from the day the policy issued, to August 31,1925, the day insured died; that on August 1, 1925 a rider was signed by defendant and attached to the policy wherein the insured authorized the company to pay the amount of insurance to Dora McDaniels, Jr., her niece; that it was agreed that the authorization was not to vary in any way, or alter the terms and conditions contained in the policy, especially the facility of payment clause; that the niece sued and recovered judgment for the amount of the policy; and that the judgment was affirmed' by the Appellate Court. In reversing the judgments of the circuit and Appellate Courts, our Supreme Court said (605):

“The defense of the insurance company is that the facility of payment clause gives an option to the insurer to pay the claim as in that clause provided, and that no one but the personal representative of the insured has a right to bring a suit against the company on a claim for the insurance; that therefore the defendant in error has no right to sue, and the judgment was erroneously entered by the circuit court and erroneously affirmed by the Appellate Court:
“In cases where the beneficiary of a policy is not named, or the policy is made payable to the estate of the insured or to his executor or administrator or to the insured', only such executor or administrator or personal representative of the insured is entitled to sue. (United States Life Ins. Co. v. Ludwig, 103 Ill. 305; Massachusetts Mutual Life Ins. Co. v. Robinson, 98 id. 324.) The facility of payment clause, as indicated by its language, gave an option to the insurer-to make any payment or to grant any non-forfeiture provision to any relative by blood or connection by marriage of the insured, or to any person who has incurred an expense or obligation on behalf of the insured or for the burial of the insured. Such clause in an industrial policy, usually issued for. a small amount, is authorized in order to protect the insurance company, with the consent of the insured, against trifling but expensive litigation which might constantly occur over disputes as to parties entitled to the amount of the insurance, and where the company has exercised that option such exercise will be a complete defense under the terms of the policy. Bradley v. Prudential Ins. Co., 187 Mass. 226; Thomas v. Prudential Ins. Co., 148 Pa. St. 594.
, “In a policy of this character the facility of payment clause is for the benefit of the insurer,. and in this case, unless it has exercised such option in behalf of the defendant in error, the judgment herein cannot be sustained. The insured signed the rider attached to the policy, which authorized the company to pay the insurance under the policy to Dora McDaniels, Jr., the defendant in error, who was a niece of the insured. The mere authorization to pay to the defendant in error was not an assignment of the benefits of the policy to her, and unless the insurer can be said to have so acted concerning such authorization as to exercise its option under the facility of payment clause, the rider is not sufficient to create a liability on the part of the insurer to pay the proceeds of the policy to the defendant in error. This rider was furnished by the insurer and was procured from the company offices by the company’s agent, who informed its superintendent as to what he proposed to do with it. It was executed before the agent on August 1 and was attached to the policy by him. The defendant in error thereafter, with this knowledge conveyed to the insurer, paid to the agent all premiums accruing on the policy up to the time of the death of the insured. The question in the case is whether the facts constitute the exercise of an option on behalf of the insurance company to pay the insurance, when matured, to the defendant in error. That it had a right under the facility of payment clause to make the defendant in error the beneficiary seems clear from, the language of that clause authorizing the company to ‘make any payment or grant any non-forfeiture provision provided for in this policy to any relative by blood or connection by marriage of the insured. ’ The authorization, as a part thereof, provided that it should not vary or in any way alter the terms and conditions contained in the facility of payment clause. If it did not vary the terms of that clause then the option to pay anyone coming within the provisions of such clause, other than the defendant in error, still remains in the contract. The defendant in error has no right to sue unless she is the beneficiary and entitled to the fund. The fact that she was by the rider included among those to whom the insurer might pay the fund does not give her that right in the absence of the exercise in her "behalf of the option resting in the company.
“. . . It is not argued that the company specif - " ically exercised its option for her benefit. Unless the company has by some overt act exercised the option provided in the contract it is not incumbent on it to do so until the policy matures. We are of the opinion that there has been no such exercise of that option. While it may be that the defendant in error by payment of the premiums expected to receive the benefit of the insurance when it matured, yet such expectation arose not out of an overt act of the company but out of the execution of a rider to the policy which neither assigned the policy to her, made her a beneficiary nor deprived the insurer of the right to exercise the option contained in the contract, but, on the contrary, expressly recognized that right. It follows that the defendant in error does not have a right to sue but that such right rests in the personal representative of the insured. It was error, therefore, to refuse to instruct the jury to return a verdict for the defendant.”

In the Lain case the Supreme Court pointed out that under the facility of payment clause of the policy there being considered, if the beneficiary did not surrender the policy with due proof of death within 30 days after the death of the insured, the company had the right to pay according to its option as therein stated, and that the evidence in that case established that immediately after the death of the insured (within 30 days) proof of death was made and such proof and an assignment made by the named beneficiary to the mortician were presented to the insurance company, which refused payment. In the Lain case the Supreme Court decided that under the facility of payment clause in the policy there being considered that within 30 days the right of a beneficiary “is that of a person holding a right under a contract fully executed.”

The parties have discussed the case of Wickerath v. Western $ Southern Life Ins. Co., Inc., 310 Ill. App. 266, reported in abstract form. We have read the briefs and abstracts and the complete opinion. It is interesting to note that the opinion of the court was delivered'by Mr. Justice Hatchett, who wrote the opinion in Standard Discount Co., Inc. v. Metropolitan Life Ins. Co., 321 Ill. App. 220, approved by our Supreme Court in the Lain case. A reading of the Wickerath case discloses that the insurance company issued a policy to John A. Unhoch on July 19, 1937, for $500. There was a facility of payment clause similar to the one in the policy in the instant case. On the back of the policy appeared the following: “Name of person to whom payment of death benefit is requested subject to all the terms and conditions of the policy. Name: Elizabeth Unhoch. Relationship: Wife. Age: 38. 7/19/37. R. C. Massa, Secretary.” The insured died September 8, 1939. He was a widower. Elizabeth Unhoch, mentioned in the policy as his wife, was living with him but was not his wife. Two children survived him. Elizabeth Wickerath sued to recover the amount of the policy. Anthony Unhoch, administrator of the estate of the insured, also, claimed the amount of the insurance. The court found in favor of the administrator and against Elizabeth Wickerath and she appealed. In affirming the judgment the court said:

“The provisions of this policy are not in essence distinguishable from the McDaniels case. The facility of payment clause, here as there, gives to the insurance company an option to pay the proceeds of the policy to any person it may think equitably entitled thereto. We presume the law would require good faith, but this would seem to be the only limitation on the option. Was it the intention of the parties by the endorsement of the name of plaintiff as one to whom payment is requested to revoke the option and compel payment to her to the exclusion of all others? If such was the intention the language used is inapt. The endorsement itself adds the words 'subject to all the terms and conditions of the policy.’ One of these terms and conditions is the option vested in the insurance company. . . .. The language of insurance contracts will in case of ambiguity be construed most strongly against the company. This,, ho we ver, does not give to a court the right or power to make a contract for the parties which they have not made for themselves. If the insured desired and intended to have the proceeds of this policy paid to plaintiff and plaintiff only, he could have taken out a policy which would have accomplished that result.”

In the case at bar the written request of insured to the company dated October 10, 1931, to pay the death benefit in accordance with the terms of the policy, to his daughter, stated that it was subject to the provision in the policy authorizing payment at the company’s option to his executor or administrator, or to any of his relatives by blood or connection by marriage, or to any other person appearing to the company to be equitably entitled to the same by reason of having incurred expense on behalf of his burial. Defendant complied with the request by indorsing on the policy that subject to the provision authorizing payment at the company’s option to other persons, the daughter was designated as beneficiary, to receive the death benefit only. It is clear from the language of the policy and the indorsements that the insurance company retained the right to exercise the option as to whom payment should be made. It will be observed that the facility of payment clause in the policy in the instant case does not give an absolute right to Stanislawa Wawrzyniak to payment if the policy is surrendered and proof of death made within 30 days, as in the Lain case. Plaintiff states that “the law generally recognizes that the insurer must exercise its option within a reasonable time after death of the assured,” but does not cite any authority in support of its contention. The assignment was made and the proof of death, demand for payment and assignment were sent to defendant the day after the death of the insured. The fact that defendant immediately re-, jected the claim of plaintiff was notice that it was not exercising its option in favor of plaintiff or its assignor. Plaintiff sued within a reasonable time thereafter. Defendant cannot be criticised for not paying the claim while the instant action was pending. Under the authority of the McDaniels case, the right to sue, where the insurance company does not exercise its option, is in the personal representative of the insured. The daughter of insured could not by the assignment, give to plaintiff as assignee, any greater right than she possessed. . She could not, under the policy and the indorsements, ■ compel the company to pay her. On failure of the company to exercise its option she could have procured the appointment of an administrator and an action could properly be prosecuted in his name.

Because of the views expressed, the judgment of the municipal court of Chicago is reversed and judgment is entered here for costs for defendant and against plaintiff.

Judgment reversed and judgment here.

Kiley and Lupe, JJ., concur.


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    In re Application of Livia Havill and Katie M. Havill to Register Title to Real Estate, Plaintiff Below, v. Edward J. Kaindl, Registrar of Titles of Cook County et al., Defendants Below. Luka Matanic et al., Appellants, v. John Krajach et al., Appellees.
    Gen. No. 43,140.

      Heard in the third division of this court for the first district at the October term, 1944.
    Opinion filed March 21, 1945.
    Rehearing denied April 10, 1945. Released for publication April 10, 1945.
    Daniel D. Glasser, of Chicago, for appellant; Richard C. Lindberg, of Chicago, of counsel.
    J. Paul Dunne, of Chicago, for appellees.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

Under a decree of the circuit court of Cook county entered November 6, 1913, two parcels of real estate located in Chicago were registered in the office of the registrar of titles of Cook county in the names of Livia Havill and Katie M. Havill. By mesne conveyances the title became vested in Peter Matanich and Bara Matanich, his wife, not as tenants in common but as joint tenants. On December 12, 1940, Peter Matanich died, and title vested in his widow, Bara Matanich, as surviving tenant. On June 30, 1941 two deeds were filed for record with the registrar of titles, each dated June 17, 1941, the first conveying the two parcels of real estate from the widow to Evelyn B. Stajkowski, a spinster, and the second from Evelyn B. Stajkowski to the widow, John Krajach and Violet Krajach, his wife, not as tenants in common, but as joint tenants, and certificates of title showing the change in ownership were issued by the registrar. On June 4,1942 Bara Matanich filed a petition in the land registration case in which the original decree was entered. She represented that her signature to the deed dated June 17, 1941 was obtained on the false representation that she was signing a bond in connection with a claim for damages on account of the wrongful death of her husband; that she signed by mark; that the deed was fraudulently procured; that it was without consideration of any kind; that the Krajachs obtained her “confidence;” that a “fiduciary relationship” was created; that she was a person óf advanced years, in ill health, unable to read, write or understand the English language; that she did not acquire any knowledge as to the effect of the purported deeds “for a long time;” that upon becoming aware of the fraud perpetrated upon her, she retained an attorney; that neither John Krajach or Violet Krajach exercised or attempted to exercise any control over the real estate; and that the management and control has been entirely in her hands. She prayed that a decree be entered setting aside, cancelling and declaring void the deeds dated June 17, 1941; that the memorials of such deeds be removed from the registers of title; and that the registrar be directed to issue a certificate of title to her showing title to the parcels of real estate to be vested in her, free and clear of all liens and encumbrances, except unpaid taxes.

An answer filed by John Krajach and Violet Krajach denied that they obtained or attempted to obtain the confidence of Bara Matanich, or that a fiduciary relationship was created; and asserted that they and Bara Matanich had been intimate friends for a number of years; that she was a woman of more than 60 years'; that she was suffering from a malignant tumor; that as friends of hers they spent a great deal of time in transporting her to hospitals for treatment and in caring for her; that after the death of her husband sbo told them on many occasions that she had no living blood relations; that in appreciation of their many kindnesses bestowed upon her, she wanted to deed the property to them; that they endeavored to discourage her from so doing; that finally on June 17, 1941 she insisted upon going to a lawyer’s office for the purpose of carrying out her wish; that they accompanied her to the lawyer’s office; that there she gave instructions for the drafting of the deeds; that John Krajach refused to accept the deeds unless she (Bara Matanich) would become a joint owner under a deed in joint tenancy with the understanding that she should enjoy the rents and income from the property during her lifetime ; that she agreed to the suggestion; that the deeds were then drawn, executed and delivered; and they denied that either of them made any false or fraudulent representations to her (Bara Matanich). The answer further avers that she was fully advised by her lawyer that the deeds she was about to execute were for the purpose of conveying title to the real estate to John Krajach, Violet Krajach and herself (Bara Matanich) as joint tenants, and that upon the death of any of them the property would become vested in the survivors or survivor; and that the deeds were validly executed and were given for a good and valuable consideration. On September 21, 1942 Luka Matanic and Manda Matanic, his wife, filed their petition stating that on August 10, 1942, subsequent to the filing of the petition by Bara Matanich, she, by good and sufficient deeds, conveyed all her right, title and interest in the parcels of real estate to petitioners, Luka Matanic and Manda Matanic, as joint tenants and not as tenants in common; that they demanded that the registrar file the deeds for record; that he register the title in their names; that he issue certificates of title in their names; that he refused so to do; and they prayed that the court decree that the right, title and interest of Bara Matanich “is now” vested in them as joint tenants and not as tenants in common; that the registrar be required to file the deeds, register them, enter proper memorials upon the register of title and issue certificates of title; that the court enter an order substituting them (Luka Matanic and Manda Matanic) for Bara Matanich as petitioners; and that the court grant to them the relief prayed in the petition filed by Bara Matanich and such other and further relief as equity may require. Answering the petition of Luka and blanda Matanic, respondents stated that it was understood at the time of the conveyance of the parcels of land to them that neither Bara Matanich or respondents would at any time during the lifetime of Bara Matanich convey their respective interests to any third party; that Bara Matanich was to collect the rents from the real estate during her lifetime; that John Krajach was to assist her “physically and financially” within his ability, to maintain the real estate and care for her personal comfort; and that he carried out “his part of the agreement.” On March 21, 1944 the circuit court entered a decree based upon the report of the examiner of titles, to whom the cause had theretofore been referred. The court found that the deed of Bara Matanich to Evelyn B. Stajkowski and the deed of the latter to John Krajach, Violet Krajach and the widow was a valid creation of a joint tenancy and was free from collusion or fraud; that the joint tenancy was created in good faith; that the construction “of the arrangement” by the parties left the rents, issues and profits in the hands of the widow for her exclusive enjoyment; that John Krajach and Violet Krajach did not create a fiduciary relationship with Bara Matanich for the purpose and with the intention of inducing her to convey the real estate to them; that the widow was more than 60 years of age, in ill health; that she had no living blood relatives and that she was intent upon creating a joint tenancy with the Krajachs; that the relations between the parties were friendly until changed by the widow; that the execution of the deed was in no way the result of false or fraudulent representations to the widow; that the deed was given for good and valuable consideration and resulted in the helpful and solicitous care bestowed upon her and outlays of “cash” on her behalf by the' Krajachs; that some of the “cash” was repaid at about the time the widow planned to make a different disposition of the real estate if she could; that there was no fixed amount of agreed consideration between the parties “to this first deed reciting $500.00;” that there was no scheme to defraud her; that the existence of the joint tenancy title was known to her at the time of her deed of conveyance to petitioners and could only affect her right, title and interest in the property that she owned. The court further found that “by virtue of the foregoing facts” the title to the premises will be vested in John Krajach and Violet Krajach as to an undivided two thirds interest as joint tenants and not as tenants, in common, also will be vested in Luka Matanic and Manda Matanic as to an undivided one third interest as joint tenants and not as tenants in common, and that the certificate of John Krajach. and Violet Krajach is subject to a life estate during the life of Bara Matanich, but that the registrar is not authorized by law to issue a certificate of title to the owners except upon an order of court. The court also found that title to the real estate will be vested in John Krajach and Violet Krajach (married to each other) as to an undivided two thirds interest as joint tenants and not as tenants in common, also will be vested in Luka Matanic and Manda Matanic (married to each other) as to an undivided one third interest as joint tenants and not as tenants in common, upon registration of said deed, free and clear of all liens and encumbrances, except forfeiture on November 20, 1926 for 5th inst. special assmt. War. No. 47861, as appears by Certificate of Title No. 404023; also subject to an assessment for a private alley over the south 10 feet of one lot as shown in Deed Doc. No. 211125; subject also to zoning ordinances of the City of Chicago as shown in Doc. No. 382117; also subject to life estate during the life of Bara Matanich vested in Luka Matanic and Manda Matanic as joint tenants and not as tenants in common (affecting the undivided two thirds interest of John Krajach and Violet Krajach) and any unpaid taxes and assessments that may have become a lien thereon since the issuing of the certificate. The court approved and confirmed the report of the examiner of titles and directed the registrar of titles, upon surrender of the owner’s duplicate certificate of title, to cancel these and issue certificate of title to John Krajach and Violet Krajach (married to each other) as to an undivided two thirds interest as joint tenants and not as tenants in common, and to Luka Matanic and Manda Matanic (married to each other) as to an undivided one third interest as joint tenants and not as tenants in common, “upon registration of said deed, free and clear of all liens and encumbrances, except those last hereinbefore mentioned.”

The decree confirms the title of John Krajach and Violet Krajach as to an undivided two thirds interest; recognizes a right in Luka Matanic and Manda Matanic to a one third interest; and recognizes that the two thirds interest of the Krajachs is subject to a life estate during the life of Bara Matanich, vested in Luka Matanic and Manda Matanic as joint tenants and not as tenants in common. In an appeal by Luka Matanic and Manda Matanic they ask that the decree be reversed; that directions be given for a new trial; that we hold that the deed from Bara Matanich to Evelyn B. Stajkowski and the deed from the latter to Bara Matanich, John and Violet Krajach to be void because made without consideration and because it was tainted with fraud and collusion; and that we further hold that the title to the real estate is now vested in appellants.

The transcript of the testimony taken before the examiner of titles is in the record. The report of the examiner of titles, on which the court acted and which the court approved and confirmed, is not in the record. It is apparent that the report was favorable to the contentions of John and Violet Krajach. The record' does not indicate whether any objections to the report were filed with the examiner, whether any exceptions were filed in court, whether any exceptions were urged, or whether there was any objection to the entry of the decree. The transcript shows that various exhibits were introduced, but they are not in the record: Buie 62 of the circuit court of Cook county reads: “All rules with relation to the practice and proceedings before Masters in Chancery, on orders of reference, shall govern proceedings before Examiners of Title under ‘An Act Concerning Land Titles,’ so far as consistent with the Act.” The practice in cases referred to a master in chancery is for the parties objecting to the report to file their objections with the master, and on the disposition of such objections and the rendition of the final report, to file exceptions to the report, or to have an order entered allowing the objections filed with the master to stand as exceptions to his report. Although the record does not show that any exceptions were taken, in view of the fact that the parties are not objecting, we will consider the points raised. For convenience we will speak of Luka and Manda Matanic as the petitioners and John and Violet Krajach as the respondents. Petitioners state that since a fiduciary relationship existed, the burden was on respondents to prove by clear and convincing evidence that the transaction was not fraudulent. We are satisfied that there was a confidential relationship between the widow and respondents. Where such a relationship exists and a gift is made" to the person in whom the confidence is reposed by reason of the relationship, it is prima facie void. The law presumes from the mere existence of the relationship that the gift was obtained by improper means and the burden of proof is upon the donee to show that it was the free and voluntary act of the donor. As stated in Gregory v. Gregory, 323 Ill. 380, 385, “Equity does not, however, deny the possibility of valid transactions between the two parties.” The mere fact that the Krajachs procured the attorney to prepare the deeds does not prove that they were obtained by improper means. In Uhlich v. Muhlke, 61 Ill. 499, the Supreme Court said (510) :

“A confidential relation gives cause of suspicion, and the circumstances under which a deed is made during such a relation, must be closely scanned; and if a reasonable suspicion exists that confidence has been abused where reposed, the deed should be set aside. Suspicion may be removed, and when the circumstances attending this transaction are closely scanned, not a scintilla of doubt can remain that the whole thing was the outpouring of grateful hearts to the best and most cherished friend they had on earth, and who has raised them up from misery to happiness.”

In Fisher v. Burgiel, 382 Ill. 42, the court said (52):

“It is settled law that courts of equity will not set any bounds to the facts and circumstances out of which a fiduciary relationship may spring. The fiduciary relationship with its legal incidents includes not only all legal and technical relations such as guardian and ward, attorney and client, principal and agent and the like, but it extends to every possible case in which a fiduciary relationship exists in fact, and in which there is confidence reposed on one side and resulting domination and influence on the other. (Beach v. Wilton, 244 Ill. 413; Kosahowski v. Bagdon, 369 id. 252.) The relationship need not be legal but it may be either moral, social, domestic, or merely personal. Seeley v. Rowe, 370 Ill. 336; Mors v. Peterson, 261 id. 532; Roby v. Colehour, 135 id. 300; Feeney v. Runyan, 316 id. 246.
“When the relationship is established, the burden is on the one profiting by the transfer of property to show that it was procured fairly and without the exercise of undue influence. If such relationship existed at the time of the transfers, then the transactions are deemed to be presumptively fraudulent and will be set aside, unless the one in whom the confidence and trust was reposed establishes their fairness by clear and convincing proof.”

The burden was on respondents to establish by clear and convincing proof the fairness of the transactions 'whereby the parcels of real estate were conveyed to them.

The evidence as to the existence of the confidential relationship between respondents and Bara Matanich is clear. It was the province of the examiner of titles in the first instance to pass upon the credibility of the witnesses. While his findings do not carry the same weight as the verdict of a jury, nor of a chancellor where the witnesses have testified before him, yet the examiner’s findings are entitled to due weight on review of the cause. His conclusions as to the facts' have been approved by the chancellor. In that situation we are not justified in disturbing the findings unless they are manifestly against the weight of the evidence. Fisher v. Burgiel, 382 Ill. 42, 53. There was competent evidence that Bara Matanich and respondents were friends and neighbors for 22 years; that after the death of her husband, Bara Matanich spent a great part of her time in the company of respondents, visiting them almost daily; that on account of their friendship she wanted to give her parcels of real estate to John Krajach; that he would not accept the real estate unless title was placed in the name of Bara Matanich, himself and his wife, with the understanding that Bara Matanich would have all of the rents and control of the real estate during her lifetime; that at the suggestion of Bara Matanich the parties went to the office of an attorney, where she told the attorney she wished to give her property to John Krajach; that the latter told her he would not accept the real estate unless Bara Matanich owned it with him; that the attorney told her the deed would have to be made in joint tenancy; that she told him to do it that way; that the attorney had his stenographer draw the deeds; that nothing was said about any consideration; that the attorney instructed his stenographer to show the consideration as $500 and “other good and valuable consideration”; and that the deeds were drawn, executed and delivered. We have carefully read the transcript of the testimony and find that the examiner of titles was justified in his findings and recommendations. He was right in finding that respondents had sustained the burden imposed upon them of proving that the deeds were procured fairly, without fraud, and without the exercise of undue influence. As the findings and recommendations were approved by the chancellor, we would not be justified in disturbing them. The examiner and the chancellor believed the testimony of respondents’ witnesses and entered their findings accordingly. No good purpose will be served by relating the testimony of the witnesses. Petitioners urge that ‘ ‘ since respondents knew that the death of Bara Matanich was imminent, the deed based upon consideration of support raised a presumption of fraud,” and that respondents admit they knew Bara Matanich was suffering from a malignant tumor and that nothing could be done for her. Petitioners cite in support of their point, 18 C. J. § 164, p. 238. On looking at this section, we observe that the case cited in support of the statement is Fletcher v. Nichols, 157 Ky. 23, 162 S. W. 544. In the Kentucky case the court sustained a gift made by a physician who was suffering from heart disease, and the court discussed the principle to be applied in case of the sudden death of a party who was to be maintained during life. In our opinion the Kentucky case is not applicable to the factual situation presented by the récord in the instant case. It is interesting to note that § 165, p. 238, 18 C. J., the page containing petitioners’ quotation, also states that “undue influence will not be presumed from the mere fact that a deed was executed by the grantor while in his last sickness.”

Petitioners maintain that “in view of the fact that Bara Matanich was unable to read or speak the English language, the deed should be set aside for the reason that she was induced to believe it was a bond.” She testified that she spoke Croatian, but could not speak, read, write or understand English or any language other than Croatian. She signed her name with a mark. The attorney who drafted the deeds testified that in addition to English he spoke the Croatian and Serbian languages. John Krajach testified that he was a Serbian, and that in addition to English he spoke the Serbian, Croatian and Polish languages, and that Bara Matanich spoke Croatian and Serbian. The examiner and the chancellor were justified in concluding that Bara Matanich was fully informed as to the transaction involving the conveyance of her real estate through communication with her by means of the Croatian or Serbian languages.

Finally, petitioners assert that parol evidence cannot be introduced to show that the consideration was something other than that recited' in the deed. In Gregory v. Gregory, 323 Ill.380, the Supreme Court said (388) : “Appellees make some point of the fact that the conveyance was made without consideration. This is immaterial. The owner of land has the same right to give it away as he has to sell it.” In Mees v. Steffey, 310 Ill. 161, the Supreme Court said (169):

“There is no pretense that there was an adequate consideration for the conveyance in this case or any consideration whatever. There was no bargain for the sale of the property. The conveyance was entirely voluntary. An owner of property may give it away without any consideration and there is not the slightest doubt that a conveyance is ordinarily valid without any consideration. (2 Tiffany on Real Prop. sec. 438.) It is well settled that although voluntary conveyances are or may be void as to existing creditors, yet they are valid and effectual as between the parties and cannot be set aside by the grantor if he should become dissatisfied with the transaction.”

One of the parcels involved is commonly known as 10911 Hoxie avenue. A witness familiar with real estate values in that vicinity testified that this parcel had a reasonable value of $1,870. Another parcel is commonly known as 2617 East 109th street, and this was valued at $2,600. These two parcels of land were improved. Another parcel of land is commonly known as 10913 Hoxie avenue. This was valued at $475. Two of these parcels are registered under the Torrens system of land registration, while on the third there is an owner’s guarantee title policy. . It appears that Bara Matanich executed deeds covering the three parcels of land, but the instant case involves only the two registered parcels. Petitioners An their brief state that subsequent to the execution of the deeds by Bara Matanich on June 17, 1941, she executed a quitclaim deed conveying the same property to them, and that when the latter offered the deed to the registrar of deeds “he learned for the first time that a deed was of record purporting to show that Bara Matanich had by mark executed a deed to one. Evelyn B. Stajkowski, and that she in turn executed a deed to Bara Matanich, John Krajaeh and Violet Krajaeh, as joint tenants and that those deeds had previously been recorded.” When Luka Matani.e, one of the petitioners, was testifying, he made an offer of proof. In this offer of proof he was asked when he first learned that Bara Matanich had transferred her property to the Krajachs and herself, and he answered: “March 22, 1942.” He was asked how he remembered that date and he said because he went to church on a special occasion. (Bee. 225.) It is apparent that petitioners knew on March 22,1942 that Bara Matanich had transferred her property. The deed from Bara Matanich to petitioners was executed on August 10, 1942. At the time the latter deed was executed petitioners knew that the grantor had previously transferred the same property-on June 17, 1941. Presumably an order was entered substituting Luka and Manda Matanic as petitioners. As the case developed, the dispute as to the title ceased to be one between Bara Matanich and respondents and became one between petitioners and respondents.

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

Decree affirmed.

Kiley and Lupe, JJ., concur.