text:
    Centa Schloesser, Trustee under and by virtue of the terms of Last Will and Testament of John W. Schloesser, Deceased, Plaintiff, v. Gladys Schloesser et al., Defendants. Gladys Schloesser et al., Counterclaimants, v. Centa Schloesser, et al. Counterdefendants.
    Gen. No. 43,582.

      Opinion filed November 19, 1946.
    Released for publication December 3, 1946.
    Knapp, Cushing, Hershberger & Stevenson, of Chicago, for appellants; William W. Fullagar, of Chicago, of counsel.
    A. F. W. Siebel and Arthur F. Siebel, both of Chicago, for certain appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.

The complaint in the instant case was filed by Centa Schloesser, trustee under and by virtue of the terms of the last will and testament of John W. Schloesser, deceased, and it prays for the construction of certain provisions of the last will and testament of John W. Schloesser. Defendants Carl M. Schloesser and Jennie Eiegel are children of Centa Schloesser by her marriage to John W. Schloesser. Blanche P. Eich, Edward Schloesser and William J. Schloesser are children of John W. Schloesser by a prior marriage. Defendant Gladys Schloesser is the widow of Harry E. Schloesser, deceased, who was a son of John W. Schloesser by a prior marriage. Defendant John W. Schloesser, a minor, is the son of Harry E. Schloesser and Gladys Schloesser. The will named three trustees to execute the trust created by the will, The Central Trust Company of Illinois, Harry E. Schloesser (son) and Centa Schloesser (the widow). The Central Trust Company became disqualified and Harry E. Schloesser died. Centa Schloesser, in accordance with the provisions of the will, continued to function as trustee. The following are the pertinent provisions of the will:

‘1 Second: I give and bequeath unto my beloved wife, Centa Schloesser, an annual income of Six Thousand Dollars ($6,000), to be paid to her in monthly installments of Five Hundred Dollars ($500) each, on the first day of each and every month during her natural life, as specified in the Fourth Paragraph of this my Last Will. It is my express will that the provision herein made for my wife, shall be in lieu of her rights of homestead, dower and widow’s award, and any and all claims and demands in and against my estate by virtue of being my surviving wife..

‘ ‘ Third: In the event my beloved wife, Centa Schloes-ser, sees fit to renounce and does renounce the provision made for her in this my last Will and in lieu thereof accepts her share of my estate as provided for by the statutes and laws of the State of Illinois, I give, devise and bequeath unto my children, Carl M. Schloes-ser and Jennie E.'Eiegel, wife of Jacob Eiegel, one dollar each, and to my children Harry E. Schloesser, Blanche P. Schloesser, William J. Schloesser and Edward Schloesser, all the rest, residue and remainder of my estate, real, personal and mixed of every name, nature and kind, wheresoever same may be situated.

“Fourth: In the event and upon the condition that my beloved wife, Centa Schloesser accepts the provision as made for her in the Second Paragraph of this my last Will, I give, devise and bequeath unto my beloved wife, Centa Schloesser, my son Harry E. Schloesser and the Central Trust Company of Illinois, (an Illinois corporation), who are hereby constituted Trustees of my estate, all my property, real, personal and mixed, of every kind, nature and character, wheresoever the same may be situated, at the time of my decease and in which I then have or might have any right, title, claim, interest or demand, but, nevertheless, in trust and upon the following trusts and with the following powers and subject to the following provisions, to-wit:

“To take charge, control and management thereof and collect the income therefrom, and whenever in their discretion they deem it proper to bargain, sell, encumber, exchange, partition, lease for any term and beyond the termination of this trust not exceeding one hundred ninety eight (198) years, build upon, improve, restore, repair and convey the same to such-persons and upon such terms and for such purposes as they deem fit; to make all deeds and instruments in writing necessary and ample to vest in the purchaser or grantee the absolute and fee simple title, or any other or lesser title thereto or therein as they may see fit, and in no event need such purchaser or grantee see to the application of his or her purchase or other money. •

“I do hereby empower and authorize my said Trustees to change the nature of the investment of the assets of my estate as often as they think proper, and for the best interests of my said estate, but I expressly direct that any exercise of the authority herein given to my said Trustees shall be exercised by them jointly while they are all acting as such trustees and by two survivors of them while both such survivors are acting as such Trustees. In the event of the death, inability or refusal of any of my said Trustees to act as Trustees under this Will, I direct that the remaining Trustee or Trustees under this Will, shall exercise each and every of the powers and duties provided for in this Will for my said Trustees, to the same extent and with the same force and effect as if he, she or they had been named as sole Trustee or Trustees in this Will.

“I hereby direct my said Trustees to pay unto my beloved wife, Centa 'Sehloesser, the sum of Six Thousand Dollars ($6,000) annually, in monthly installments of Five Hundred Dollars ($500) each on the first day of each and every month during her natural life.

“I further direct that the balance of the income of my estate after deducting the payments to my beloved wife, Centa Sehloesser and all other -many- expenses incurred in executing this trust, be paid annually to my six children, share and share alike, in the event that any of said children should die without leaving issue surviving him or her said child’s share shall be equally divided between the surviving children, but in the event that any of my said children shall die leaving issue of their body surviving then said issue shall take such parents share.

“Correction made before execution. J. W. Sehloesser

“I further direct that upon the death of my beloved wife, Centa Sehloesser, that my said Trustees divide equally share and share alike all of my said estate then in their charge and control among my children. In case of the death of any of my said children prior to the time said child or children shall be entitled to receive his or her share or shares as aforesaid, then such share or shares shall go to his or her issue, and in case there be no such issue, then such share or shares shall be distributed among my remaining children or their issue, as the case may be.

“Fifth: Should any legatee or devisee of my last Will attempt to set aside the terms and conditions of this my Will, and have the same declared invalid, then I revoke and declare null and void any and all bequests and devises herein contained in favor of the legatee or devisee, so attempting, and I direct that said legatee or devisee, so attempting, receive no part of my estate whatsoever, such devise or bequest shall be equally divided between the other devisees and legatees herein named.” (Italics ours. The signature of the testator appears in the margin of each page of the will. The paragraph marked “ [A] ” is so marked by us for convenience in hereinafter referring to it.)

The chancellor entered the following decree:

“This cause coming on to be heard on the complaint, the answer, and counterclaim of certain defendants, the reply to said answer and answer to said counterclaim of the plaintiff, and the amendments to the complaint, answer and counterclaim, and on the answer and counterclaim of the guardian ad litem, and reply and ansAver of plaintiff thereto, and the Court being fully advised in the premises, after arguments of counsel,

“Finds: That the pleadings filed in this cause present an issue requiring the construction of the Last Will and Testament of John W. Schloesser, deceased, as to whether or not the decedent intended by the terms of said Last Will and Testament, to confer the right and authority on the trustee to pay to Centa Schloesser as the surviving widow of the said John W. Schloesser, monies on account of the bequests made to her therein, as ‘an annual income of Six Thousand Dollars ($6,000.00) to be paid to her in monthly installments of Five Hundred Dollars ($500.00) each’ out of the principal or corpus of said trust estate, after the income thereof is exhausted in payments of prior installments to her, and expenses of the trust as they may have accrued, and upon due consideration thereof, it is hereby

“Ordered, adjudged and decreed that by and under the terms and provisions of the Last Will and Testament of John W. Sehloesser, and the trust therein and thereby created, Centa Sehloesser, the sole surviving trustee thereunder, in pursuance of the provisions of said trust, has the right as trustee to pay to herself as such surviving widow of John W. Sehloesser ‘an annual income of Six Thousand Dollars ($6,000.00), to be paid to her in monthly installments of Five Hundred Dollars ($500.00) each, ’ as provided for in said Last Will and Testament, or any part or portion thereof out of the principal or corpus of said trust estate, after the income thereof has been entirely exhausted in making payments of installments accruing, and the expenses of said trust, and it is further

“Ordered, adjudged and decreed that the cross complaint of Gladys Sehloesser, John W. Sehloesser, a minor, by George Lane, his guardian ad litem, Blanche P. Reich, Edward Sehloesser, and William J. Sehloesser, be, and the same is hereby dismissed for want of equity. . . .”

Blanche P. Rich, Edward Sehloesser and William J. Sehloesser, defendants, appeal from the decree. The children of the testator by Centa Sehloesser did not join in the appeal.

During the hearing before the chancellor plaintiff offered several depositions as testimony tending to prove the intention of the testator, but the chancellor held that the intention of the testator clearly appeared from the language' of the will and he refused to consider the depositions.

Appellants contend that the intention of the testator “must be ascertained from the language of the will. ’ ’ Plaintiff argues that that principle of law is subject to the qualification that if it becomes necessary the will must be considered in the light of the circumstances surrounding the testator at the time he made it. In Quigley v. Quigley, 370 Ill. 151, the court states (pp. 152, 153): “In determining the interests created by the will, we must ascertain and give effect to the intention of the testatrix as expressed by all the provisions of the will, interpreted in view of the circumstances surrounding the testatrix. (Hollenbeck v. Smith, 231 Ill. 484.)” Cahill v. Michael, 381 Ill. 395, 402, follows the rule stated in the Quigley case. In the foregoing cases it is also held that if the language of the will is clear the court will not consider the surrounding circumstances for the purpose of varying an intention clearly expressed. The position of appellants is “that it was the intention of the testator to have the payments in question only paid out of the income produced by the trust estate and not out of the corpus thereof.” The position of plaintiff is that where there is “a gift of an annuity without expressly limiting the payment of the same from income, the annuity must be paid from any funds on hand, whether income or corpus of the estate.” As we view it, the question before us may be stated as follows: Did the testator, when he gave and bequeathed to his wife, Centa Schloesser, an annual income of $6,000, intend to thereby create an annuity for her, to be paid absolutely, and out of the principal or corpus, if necessary?

The following facts appear from the language of the will: Plaintiff was the beloved wife of the testator, the mother of several of his children, and the primary object of his bounty. Throughout the will the testator manifests a purpose to make ample and certain provision for his wife during her life, and it must be noted that plaintiff, by accepting the provision made for her in the will, waived “her rights of homestead, dower and widow’s award, and any and all claims and demands in and against my estate by virtue of being my surviving wife.” The testator showed trust and confidence in his wife by naming her as one of the trustees.

It appears that the entire estate of the testator consisted of a business building on Broadway, in the Wilson avenue district; an old homestead on Magnolia avenue, and five vacant lots on the outskirts of Chicago. The Broadway property was mortgaged for $15,000 and the Magnolia avenue property was mortgaged for $5,000. The Broadway property was leased and the lessee had made an advanced rent payment of $15,000 which was to apply upon the rent due at the end of the term, but this sum was not retained intact by the testator. Interest was payable to the lessee upon the rent advanced, and interest was also payable upon the two mortgages. Since the death of the testator the tenant in the Broadway property has vacated the premises. The rent income from the Magnolia avenue property was $60 a month. It became necessary to sell all of the three pieces of real estate. The Broadway property sold for $30,000, the Magnolia avenue property for $6,000, and the vacant lots for sums approximating $600 a lot. For some time the widow has not received any payments upon her bequest and there are now no funds left in the estate from which to make the payments.

“The legal definition of the word ‘annuity’ has been the cause of puzzlement of mind, and there is a wealth of embarrassment in the decisions of the courts. At common law an annuity is a yearly sum charged on the person of the grantor. The term has lost its primary meaning, however, and no longer means a yearly payment of a certain sum of money granted to another in fee, or for life, or for years, and chargeable only on the person of the grantor, and in its broader sense designates a fixed sum, granted or bequeathed, payable periodically, but not necessarily annually; and it may be made a charge on real estate as well as on the person if that is the intention of the parties or if the result follows by operation of law.” (3 C. J. S. (Annuities) pp. T373, 1374. See, also, Routt v. Newman, 253 Ill. 185, 188; 2 A. & E. Encycl. of L. (2d) 387; Estate of Apple, 66 Cal. 432, 438.)

The subject of annuities was exhaustively considered by Mr. Justice McSurely in Moody Bible Institute v. Pettibone, 289 Ill. App. 69, but it would unduly lengthen this opinion to cite all that is therein said upon the subject. We quote, however, the following (pp. 75, 76, 78, 79):

“It is well established that whether, under a will, an annuity is payable out of income only or out of principal and income, is always a question of the testator’s intention as shown by the will. And in this connection we quote, as very pertinent, from the old case of Gulliver v. Poyntz, 3 Wils. (Eng.) 141: ‘ Cases in the books upon wills may serve to guide us with respect to general rules in the construction of devises in wills, but unless a case cited be in every respect directly in point, and agree in every circumstance with that in question, it will have little or no weight with the court; who always look upon the intention of the testator as the polar star directing them in the construction of wills.’

“However, there are a large number of cases supporting the proposition that where a will contains a gift of legacies and annuities, followed by a general devise of the residue en masse, there is thereby created a charge of both upon the corpus. In Reid v. Corrigan, 143 Ill. 402, a legacy was given to the testator’s niece, followed by a devise of the residue of the estate; it was held that the legacy was a charge upon and payable out of the residuary devise. In Stickel v. Crane, 189 Ill. 211, it was held that it was a rule of property that, if legacies are given generally and the residue is afterward given in one mass, the legacies are a charge on the residuary estate; that this rests upon the principle that the whole estate is considered as one mass; that part of the mass is represented hy legacies and that ‘what is afterward given is minus what has been before given, and therefore given subject to the prior gift.’ See also Williams v. Williams, 189 Ill. 500.

í Í

“. . . It is the rule that no specific language need be used in a will in order to create a charge upon real estate. Any words that reasonably indicate the testator’s intention will be held to create such a charge. Sullivan v. Sullivan, 242 Ill. App. 501; In re Estate of Schwartz, 275 Ill. App. 374; Additon v. Smith, 83 Me. 551; Smith v. Fellows, 131 Mass. 20, and Burnet v. Whitehouse, 283 U. S. 148. And in Thompson on Construction of Wills (1928), page 561, the author says:

“ ‘There is a substantial distinction between “annuities” and trusts for the payment of income to beneficiaries. Where an annuity is created the annuitant is entitled to the stipulated payments per annum, irrespective of the earnings derived from a particular corpus or fund. Where a trust fund is created, however, the beneficiaries are entitled to the entire income earned on the portion mentioned in the will. In the case of annuities, where the income is insufficient, the executors or trustees may encroach upon the principal, even in the absence of specific directions. ’

“Page on Wills, sec. 1036, vol. 2 (2d ed.) says:

“ ‘One of the chief points of difference in effect between a gift of income and an annuity is, that a gift of income fails if the principal of the estate is not sufficient on investment to pay the income bequeathed ; while an annuity does not fail because the net income is insufficient to pay it in full, but is payable out of the principal, unless the principal is disposed of by the will in such a way that the gift thereof is on an equality with the annuity or has priority over it in case of abatement, or unless the will shows an -intention to pay the annuity out of the income alone. An annuity is to be paid out of the principal of a residuary gift. Where an annuity is given to a beneficiary, and testator directs his estate to be so invested as to produce such annuity, it is held that in case the income, of the estate is not sufficient to pay the annuity in full the principal should be used to pay it. WThere a testator directs that a certain fund be so invested as to produce a given annuity, it is held that in case of a deficiency of the income from the fund the principal may be drawn upon.’ (Citing cases.)

“Among the many other cases supporting the proposition that an annuity is a fixed amount directed to be paid absolutely and out of the principal if necessary, are Johnston’s Estate, 264 Pa. 71, In re Stewart’s Estate, 255 N. Y. S. 389, In re Anderson’s Estate, 256 N. Y. S. 529, In re Hardy’s Estate, 86 N. J. Eq. 405. In a note appended to this last case, as reported in L. R. A. 1917 E at page 584, it is said: ‘The fact that the annuitant was a prime object of the testator’s bounty, or that the annuity was evidently intended for the maintenance of the annuitant, is a circumstance strongly tending to show that it was the testator’s intention that the annuity should be paid in full and therefore, if necessary, out of the corpus.’ See also 40 Cyc. 1631. Many other cases might be cited.

“The cases cited by plaintiff and the cross appellants involve wills where it was clearly expressed that the annuities should be paid out of the income only and not out of the corpus of the estate. Such cases are Einbecker v. Einbecker, 162 Ill. 267, Irwin v. Wollpert, 128 Ill. 527, and DeHaven v. Sherman, 131 Ill. 115.” (Italics ours.)

Turning now to an examination of the pertinent provisions of the will under consideration: In section Second we find that the testator granted and bequeathed to his beloved wife, Centa Schloesser, a fixed sum payable annually during her natural life, in monthly installments. The testator did not provide in this section that the $6,000 was to he paid out of income only, hut stated that it should he paid “as specified in the Fourth Paragraph of this my Last Will.” Appellants’ argument that section Second supports their position is not warranted by the language of that section. They argue that it is significant that nowhere in the will did the testator use the word annuity. As stated in Moody Bible Institute v. Pettibone, supra (p. 78): “It is the rule that no specific language need be used in a will in order to create a charge upon real estate. Any words that reasonably indicate the testator’s intention will be held to create such a charge.” (Citing cases.) Appellants further argue that the use of the word “income” is also significant. We disagree. The author of the article “Income” in 42 C. J. S. pp. 528, 529, states: “A broad, comprehensive, flexible, inclusive, or generic term, capable of definition. Although it has a well defined meaning, not only in common speech, but also under judicial construction, there appears to be some difficulty about its precise and scientific definition, and its definition may cover a variety of particular significations. Its specific meaning in a particular case is governed by the intent of the parties as deduced from the context, the subject matter of the instrument, and the character of the person, or persons, employing it. The meaning of the term is not to be found in its bare etymological derivation; it is rather to be gathered from the implicit assumptions of its use in common speech; and it must be rationally construed and not stretched to include purely theoretical, as distinguished from practical, conceptions. ’ ’ In the common use of the word an annuity is an income. But in order that his intention might be made absolutely clear, the testator states, in effect, that the nature of the fixed sum he grants and bequeaths to his wife is specified in the Fourth section of his will. The pertinent part of that section (the paragraph we have designated [A]) reads as follows: “I hereby direct my said Trustees to pay unto my beloved wife, Centa Sehloesser, the sum of Six Thousand Dollars ($6,000) annually, in monthly installments of Five Hundred Dollars ($500) each on the first day pf each and every month during her natural life.” We are satisfied that the testator intended by this plain language to grant and bequeath an unqualified annuity to his wife. Payment of the annuity from any particular fund or source is neither prescribed nor suggested. But appellants contend that the paragraph following paragraph [A], in which the testator uses the words “the balance of the income of my estate after deducting the payments to my beloved wife,” etc., supports their contention. This last paragraph is separate from paragraph [A] and we are satisfied that the testator did not intend that it should modify or qualify paragraph [A]. If it be conceded that the intent of this last paragraph is somewhat ambiguous, that fact would not aid appellants’ contention, because, “A gift in clear terms cannot be taken away or diminished by subsequent words that are not as clear and decisive; likewise, a clear gift by an earlier provision will not be modified or qualified by a later obscure or ambiguous provision.” (69 O. J. pp. 114, 115.) See, also, Melies v. Beatty, 313 Ill. 418, where the court states (p. 421):

“The rule of construction is, that when an estate is given by one clause of a will it cannot be cut down or taken away by a subsequent clause except by clear and unambiguous terms, — as clear as the language of the clause giving the estate. (Roberts v. Roberts, 140 Ill. 345.)” (See, also, Holmes v. Miner, 247 Ill. 586, 589.)

In support of appellants’ contention that the payments to the wife could only be made from the trust income they cite Einbeeker v. Einbeeker, 162 Ill. 267. As Mr. Justice MoSurely stated in Moody Bible In stitute v. Pettibone, supra (p. 79), in the Einbecker case it was clearly expressed in the will that the annuity should be paid out of the income only and not out of the corpus of the estate. A like situation was present in Chicago Title & Trust Co. v. Morey, 281 Ill. App. 219, cited by appellants. As to Taylor v. Gardiner, 296 Mass. 411, also, cited by appellants, it is sufficient to say that there the will contained a provision (p. 413) that “All payments, both of principal and of income as aforesaid shall be left solely to the discretion of my said trustee and his decision as to payments from principal or income shall be final and binding.” Furthermore, the opinion in that case states (p. 414): ‘ ‘ This case is to be distinguished from cases where the will discloses an intent to charge a true annuity upon the fund as a whole, Richardson v. Hall, 124 Mass. 228, 236, Parkhurst v. Ginn, 228 Mass. 159,172, and even from cases where there is no express indication of'the intent one way or the other, Hammond v. Hammond, 169 Mass. 82,84.”

The productive part of the instant estate consisted of the Broadway building and that property was practically the only source of income. To sustain appellants’ contention it would .be necessary to hold that the testator intended that if for any reason the Broadway building became nonproductive his widow should be without means of support. Certain provisions of the will clearly show that the testator had no such intention and that he regarded his “beloved wife” as the primary object of his bounty. To repeat what Mr. Justice McSukely said in Moody Bible Institute v. Pettibone, supra (p. 79): “ ‘The fact that the annuitant was a prime object of the testator’s bounty, or that the annuity was evidently intended for the maintenance of the annuitant, is a circumstance strongly tending to show that it was the testator’s intention that the annuity should be paid in full and therefore, if necessary, out of the corpus.’ ”

If we have correctly interpreted the pertinent pro-, visions of the instant will, it follows that the chancellor was justified in dismissing the cross-complaint for an accounting.

For the reasons stated in this opinion the decretal judgment of the Circuit court of Cook county is affirmed in toto.

Decretal judgment affirmed in toto.

Sullivan, P. J., and Friend, J., concur.


source: Caselaw Access Project

author: Mr. Justice Soanlan

license: Public Domain

text:
    In re Estate of John Jarmuth, Deceased. Laura Heiby, Appellant, v. Minnie Reinberg et al., Appellees.
    Gen. No. 43,707.

      Opinion filed November 19, 1946.
    Released for publication December 3, 1946.
    Gerald T. Wiley, of Chicago, for appellant.
    Cummings & Wyman, of Chicago, for appellees; Austin L. Wyman and Kurt W. Teuthorn, both of Chicago, of counsel.
   Mr. Justice Soanlan

delivered the opinion of the court.

Petitioner, Laura Heiby, appellant and cross-appellee, filed in the Probate court of Cook county the following verified “petition for citation to recover property and discover information”:

“Tour petitioner, Laura Heiby, respectfully represents :

“1. That she is the daughter of John Jarmuth, deceased; that letters testamentary have heretofore, towit on August 5th, 1943, been duly issued to Minnie Reinberg, who is also a daughter of the deceased, and that said Minnie Reinberg has filed an inventory in said estate.

“2. That for most of the time during the last two years before his death the deceased has lived with said Minnie Reinberg, the Executrix herein, and her husband John Reinberg; that during that' time "the deceased was in failing health and the said Minnie Rein-berg and John Reinberg transacted various items of business for said deceased and had access to the bank account and safety deposit box of the deceased.

‘‘3. That upon information and belief this petitioner states that, at the time of the death of the deceased, Minnie Reinberg and John Reinberg were indebted to the deceased for a sum of money in excess of $25,000.00 and that said indebtedness was evidenced by a note of said Minnie Reinberg and John Reinberg which was in the safety deposit box of the deceased up to shortly before his death.

“4. That within six months before his death the deceased sold one of his pieces of property for a sum in excess of $9,000.00 and this petitioner, upon information and belief, states that Minnie Reinberg and or John Reinberg came into possession of the proceeds of said sale and have not accounted for same.

“5. That the deceased, at the time of his death, was the owner of a large block of stock in the Mortar Supplies Co. which stock this petitioner believes was in the possession of Minnie Reinberg and John Rein-berg at the time of the death of the deceased.

“6. That the deceased is the owner of certain real estate located on Mozart St., Chicago, Cook County, Illinois.

“7. That none of the foregoing items have been inventoried by the said Minnie Reinberg, the executrix of said estate, and this petitioner believes that said Minnie Reinberg and John Reinberg have converted some or all of the personal property mentioned in paragraphs Nos. 3, 4 and 5 of this petition to their own use.

“8. That ?he believes that one Daniel P. Nagle of Chicago, Illinois has knowledge or information concerning property belonging to said estate which is needed to recover said property and which said Minnie Reinberg refuses to inventory.

“9." That in view of the foregoing allegations a guardian ad litem should be appointed by this Court to represent said estate.

“Wherefore, the undersigned prays that the said Minnie Reinberg, John Reinberg and Daniel P. Nagle may be cited to appear before this Court on a day. certain and compelled to answer such interrogatories as may be propounded to them, touching the matters and things hereinbefore set forth, and that the proper order of this Court be entered upon such examination if it be found that any or all of such property is the property of the estate of John Jarmuth, deceased, and to answer interrogatories put to them concerning knowledge or information withheld by them and needed to recover property by suit or otherwise, and that a guardian ad litem be appointed by this Court to represent said estate.”

The Probate court entered a citation directed to Minnie Reinberg, John Reinberg and Daniel P. Nagle, directing them to appear in the Probate court, to answer the verified petition, to attend the hearing thereon, to submit to examination under oath, and to show cause why an order or judgment should not be entered against them as the case required. Although the citation order directed respondents to .answer the verified petition the record does not show that any of them filed answers to the petition. Upon a hearing before the Probate court upon the citation order, an order was entered dismissing the petition and citation. An appeal was taken by petitioner to the Circuit court, and after a hearing de novo before the court the following order was entered:

“That John Reinberg was indebted to John Jar-muth, deceased, at the time of his death in the sum of $17,430.25, being the balance due on his note of $25,000.00, and that said Minnie Reinberg, Executrix of the estate of John Jarmuth, deceased, inventory the same in the estate of John Jarmuth, deceased, now pending in the Probate Court of Cook County, Illinois.

“The Court further finds that the other items' claimed by Laura Heiby in her petition for citation as belonging to the estate of John Jarmuth, deceased, were given to Minnie Eeinberg by the said John Jar-muth during his lifetime and do not belong to said estate.”

Petitioner appeals from that judgment order. Ee-spondents Minnie Eeinberg and John Eeinberg have filed a cross-appeal praying that that part of the judgment order finding that respondent John Eeinberg was indebted to John Jarmuth, deceased, in the sum of $17,430.25, and ordering Minnie Eeinberg, as “Executor,” to inventory the same in the estate of John Jarmuth be reversed.

Petitioner, Laura Heiby, contends that

‘ ‘ The Court erred in failing to require Minnie Eein-berg to inventory all of the items recited in the Petition for Citation in the Estate of John Jarmuth, deceased.

“The Court erred in finding that said items were given to Minnie Eeinberg by John Jarmuth during his life time and do not belong to said estate.

“The Court erred in failing to find that Minnie Eeinberg, as well as John Eeinberg, was indebted to John Jarmuth, deceased, at the time of his death, in the sum of $17,430.25, and failing to require said Minnie Eeinberg, Executrix of the Estate of John Jarmuth, deceased, to inventory said indebtedness from her in said estate.”

In a careful reading of the entire record in this case we find facts and circumstances that tend strongly to'prove that Minnie Eeinberg and her husband, John Eeinberg, conspired to convert to their own use the assets of the estate of John Jarmuth. It is our opinion that the examination proceedings that followed the citation order were not prosecuted comprehensively and summarily, as the statute contemplates. The attorney who filed a brief for petitioner in this court took no part in the_proceedings in the trial court.

Respondents Minnie Reinberg and John Reinberg contend that the order of the Circuit court, save the second paragraph thereof, wherein it was found that John Reinberg was indebted to the estate in the sum of $17,430.25, should be affirmed, but that as to that item the judgment order should be reversed. The theory of respondents is that under the law there was a burden upon petitioner to establish at the outset of the proceedings a fiduciary relationship between the testator, John Jarmuth, and Minnie Reinberg by proof so strong, unequivocal and unmistakable as to lead to but one conclusion; that petitioner failed to successfully sustain that burden and therefore they were not obliged to prove that the items mentioned in paragraphs 4, 5 and 6 of the petition were given to Minnie Reinberg by her father and were valid gifts inter vivos. They concede that if petitioner had successfully proved the fiduciary relationship “then the burden of proof would be upon us” (the Reinbergs) to defend the alleged gifts to them from John Jarmuth, “to show, and presumably by disinterested testimony throughout, the complete fairness of the transaction attacked.” Respondents entirely misinterpret the purpose of the statutory examination to discover and recover assets of an estate.

The instant petition was filed under par. 335, sec. 183 [Jones Ill. Stats. Ann. 110.432] of the Administration Act. Par. 337, sec. 185 [Jones Ill. Stats. Ann. 110.434] of the Act provides:

“At the hearing the court may examine the respondent on oath whether or not the petitioner has proved the matters alleged in the petition, may hear the evidence offered by any party, may determine all questions of title, claims of adverse title, and the right of property, and may enter such orders and judgment as the case requires. If the respondent refuses to answer proper questions put to him or refuses to obey the court’s order or judgment to deliver any personal property or, if converted, its proceeds or value, or books of account, papers, or evidences of debt or title to lands, the court may commit him to jail until he complies with the order or judgment of the court or is discharged by due course of law or the court may enforce its order or judgment by execution against the respondent’s real and personal property. The court may tax the costs of the proceeding against the respondent and enter judgment therefor against him. ’ ’

Par. 339, sec. 187 [Jones Ill. Stats. Ann. 110.436], provides:

“If the executor, administrator, guardian, or conservator- is the respondent, the court may appoint a guardian ad litem to appear and represent the estate. The court may permit the guardian ad litem to prosecute or defend an appeal.” No guardian ad litem was appointed in the instant proceeding although the petition prayed that one be appointed and the case was clearly one where the protection of the estate required such appointment.

Par. 337, sec. 185, was “intended to provide a comprehensive and summary means for the discovery and recovery of assets, or of their value if they have been converted. The proceeding is purely statutory and is neither at law nor in equity. It bears the equitable aspects of a bill of discovery, while at the same time providing for an optional jury as at law on demand of the parties, where questions arise concerning claims-of adverse title or interest. . . .” (Keshner v. Keshner, 376 Ill. 354, 359.)

While it is true that the citation order was entered upon the prayer of the petition, the examination proceedings that followed did not involve a law suit between petitioner and respondents. Sec. 185 of- the Act was intended to provide a comprehensive and summary means for the discovery and recovery of assets, or of their value if they have been converted, and the trial court controlled the proceedings and had full power to conduct the examination, and independently of the petitioner. At the hearing, the trial court was given the power by the statute to hear evidence offered by any party. We may state, however, that even if it were necessary for petitioner to prove, in the first instance, the fiduciary relationship between Minnie Beinberg and her father, she successfully sustained the burden.

John Jarmuth died June 8, 1943, leaving as his heirs at law his widow, Minnie Jarmuth, and two daughters, Minnie Beinberg and Laura Heiby, the petitioner. Jarmuth was about eighty-three years of age at the time of his death and had not been in good health for some time before that event. During the last eighteen months of his life he had been in a hospital upon several different occasions, but the record fails to show what ailments caused him to go there. Jarmuth’s wife was aged and feeble-minded, and for that reason, probably, he went to live with Minnie Beinberg about a year and a half before he died, and he continued to live at her home until his death. Minnie Beinberg testified that for quite a few years before her father’s death she took care of his affairs; that she took care of his business during all of the time that he lived with her; that her father had a safety deposit box in the First National Bank of Skokie, to which she had access; that she would go there to get papers for her father or to put papers in the box for him; that her father had a bank account in the First National Bank of Skokie and that in May, 1943, she was made a joint tenant of this account. Jarmuth owned 996 .shares of the 1,000 shares of the Mortar Supplies Company that were outstanding. Minnie Beinberg was the secretary and treasurer of that company and she kept its records in her home. The evidence, in our opinion, shows that a fiduciary and confidential relationship existed between Minnie Reinberg and her father and that she was a dominating factor in his affairs during the last few years of his life. Jarmuth’s wife and his daughter Laura Héiby took no part in his business affairs. A paragraph in Jarmuth’s will indicates that he considered his wife too feeble-minded to handle money.

“. . . Courts of equity have refused to set any bounds to the circumstances out of which a fiduciary relation may spring. It includes all legal relations, such as attorney and client, principal and agent, guardian and ward, and the like, and also every case in which a fiduciary relation exists in fact, where confidence is repo'sed on one side and domination and influence result on the other. (Mors v. Peterson, 261 Ill. 532; Kosakowshi v. Bagdon, 369 id. 252; Beach v. Wilton, 244 id. 413.) The relation need not be legal, but it may be either moral, social, domestic, or merely personal. (Mors v. Peterson, supra; Roby v. Colehour, 135 Ill. 300.) Transactions with a fiduciary are presumptively fraudulent, and will be stricken down unless he establishes their fairness by clear and convincing proof. Mors v. Peterson, supra; Kosahowshi v. Bagdon, supra.” (Seely v. Rowe, 370 Ill. 336, 342.)

“. . . When a confidential or fiduciary relation is established between parties, courts of equity scrutinize very closely any transaction or contract between the parties by which the dominant party secures any profit or advantage at the expense of the person under his influence.. All transactions between parties in this relation are presumptively fraudulent and void, and before a court of equity will permit such contract to stand, the proof must be clear and convincing and satisfy the conscience of the chancellor that good faith has been, exercised and that the confidence reposed in the beneficiary of the contract has not been betrayed by him. Beach v. Wilton, supra [244 Ill. 413], and authorities there cited.” (Mors v. Peterson, 261 Ill. 532, 536.)

However, the trial court found that the items set up in paragraphs 4, 5 and 6 of the petition of Laura Heiby “were given to Minnie Reinberg by the said John Jarmuth during his lifetime and do not belong to said estate,” and we must presume that the court intended by that finding to hold that the said items were valid gifts inter vivos. “The burden of proof of the gift is on the donee to prove all facts essential to a valid gift. The essential facts are the delivery of property by the donor to the donee with intent to pass the title, and the great weight of authority is that the proof to sustain the gift must be clear and convincing. (Maxler v. Hawk, 233 Pa. St. 316; In re Bolin, 136 N. Y. 177; Grey v. Grey, 47 id. 552; Chambers v. McCreery, 106 Fed. 364; 45 C. C. A. 322.) Mere possession by one claiming property as a gift, after death of the owner, is universally, we believe, held insufficient to prove a valid gift.” (Rothwell v. Taylor, 303 Ill. 226, 230, 231.) The Bothwell case also holds (p. 232) that where the donor and donee live together, “Mere proof of delivery may be some evidence tending to show intent, but under the circumstances shown in this case all the authorities are that but little consideration can be given to it.” In some of the States it is provided by statute that if the donor and donee reside together at the time of the gift, possession by the donee at their place of common residence is not a sufficient possession within the meaniüg of the statute. (See 28 C. J. p. 638.) Former Section 2414 of the Code of Virginia read as follows: “No gift of any goods or chattels shall be valid, unless ‘by deed or will, or unless actual possession shall have come to and remained with the donee, or some person claiming under him. If the donor and donee reside together at the time of the gift; possession at the place of their residence shall not be a sufficient possession within the meaning of this section.” The rule requiring gifts inter vivos to be established by clear and convincing evidence is especially applicable in cases ivhere a confidential relationship existed between the parties. (See Estate of Williams v. Tuch, 313 Ill. App. 230, 240.) In the instant case the burden was upon respondents to prove that the items in question were valid gifts inter vivos, and the fiduciary and confidential relationship between Minnie Reinberg and her father is merely an additional reason why the proof of the alleged gifts inter vivos should be clear and convincing. The claim of respondents that they were absolved from proving that the items in question were valid gifts inter vivos because petitioner failed to prove a fiduciary relationship between Minnie Rein-berg and her father, is without the slightest merit in law or in fact. In spite of the fact that the examination that followed the citation order was not vigorously and skilfully prosecuted there are certain mountain peaks in the evidence that tend strongly to show that the Reinbergs’ claim that Jarmuth made certain gifts inter vivos to Minnie Reinberg is not even an honest one.

On August 5,1943, Minnie Reinberg filed in the Probate court of Cook county a verified petition presenting what purports to be a will of John Jarmuth for probate. The petition contains, inter alia, the following paragraph:

‘ ‘ The approximate value of the real and .personal estate of decedent in this state is as follows :

“Personal estate in the value of $25,000.00

“Real Estate in the value of $ None

“The value of the whole estate of decedent does not exceed $25,000.00

‘ ‘ The estate of the decedent will be sufficient to discharge all claims against the estate.”

(Italics ours.)

In considering the weight and effect that should be given to that part of the inventory that we have italicized it must be noted that this verified petition was filed by one who testified that for quite a few years before her father’s death she took care of his business affairs, had access to his safety deposit box, and was a joint tenant of his bank account. On October 1, 1943, Minnie Reinberg, as executrix of the last will and testament of John Jarmuth, filed in the Probate court the following inventory in said estate:

“Inventory

“Real Estate

“None

“Personal Estate

“1. Certificate No. 9 for 25 shares of capital stock of 5337-39 North Hoyne Avenue Building Corporation, issued in the name of John Jarmuth, dated February 10, 1934.

“Deemed Good

“2. Bond No. 13 Village of Wilmette Improvement, Series E, special assessment No. 195, dated November 15, 1927, due December 31, 1933, for $100.00, bearing interest at 6% per annum, payable annually; endorsements thereon showing unpaid balance now $20.00.

Interest coupons 5 and 6 attached.

Last interest paid July 31, 1940, at 5% per an-num.

“Deemed Good

“3. Promissory note for $800.00, dated January 1, 1937, due two years after date, to the order of John Jarmuth, signed by Norman Jarmuth and Grace Jarmuth.

Endorsement thereon showing judgment entered for $1019.99 in the Municipal Court of Chicago on April 30, 1941.

“Deemed Doubtful

-“4. Goods and chattels, as per bill of appraisement, $25.00

[Signed] “Minnie Reinberg

“As Executor of the Last Will and Testament of John Jarmuth, deceased.”

After a careful consideration of all of the relevant facts and circumstances in the record we have found it difficult to escape the conclusion that when Minnie Reinberg filed the verified petition in the Probate court presenting the will of her father for probate she then intended to inventory as an asset of the estate a $25,000 note that she and her husband had executed and given to her father in payment of a $25,000 loan made to them by him, but that three months later she and her husband had decided not to inventory the $25,000 note as an asset of the estate and to file a false inventory that would show that her father left no estate of any real value. By that time the Reinbergs had decided, apparently, to claim that the promissory note for $25,000 had been partially discharged by payments made by them to J armuth and that later the note was given by J armuth to Minnie Reinberg, and that everything else of real value that Jarmuth possessed he had also given to Minnie Reinberg. The bold claim is also made by the Reinbergs that immediately after Jarmuth had executed his will and handed it to Reinbergs’ attorney — who took it to his office — Jarmuth gave to Minnie Reinberg the 996 shares of stock that he owned in the Mortar Supplies Company and the mortgage that he held upon that company.

The will of Jarmuth, prepared, as we have heretofore stated, by the Reinbergs’ attorney — who was also a witness to the will — contains the following provisions :

“I, John Jarmuth, of Skokie, Illinois, being of sound and disposing mind and memory, do hereby make, publish and declare this my Last Will and Testament, hereby revoking all former wills by me made.

“First: I direct that all my just debts, funeral expenses, costs of administration of my estate, and any inheritance or estate taxes which may be assessed against my estate, or any share or interest therein, be first paid.

“Second: All the rest, residue and remainder of my estate, both real and personal wheresoever situated, I give, devise and bequeath to my daughter, Minnie Beinberg, and my son-in-law, John Beinberg, or the survivor of them, as Trustees under the following uses and trusts, namely:

“(a) My said Trustees shall pay all expenses for the support, care and maintenance of my beloved wife, Minnie Jarmuth, so long as she shall live, including necessary medical and hospital expenses; and if my said wife, Minnie Jarmuth, shall, in the judgment of my said Trustees, be capable of handling money, they shall pay and turn over to her such funds as she may request and as they, in their discretion, may deem advisable. My said Trustees are hereby expressly authorized and directed to apply all or any required portion of the income of my estate for such purpose or purposes, and to use so much of the principal thereof as they, in their sole discretion, shall deem necessary.
“(b) Upon the death of my beloved wife, Minnie Jarmuth, my said Trustees shall pay all necessary funeral and burial expenses.
“(c) I am not certain how the title to my home at 5151 Oakton Street, Skokie, Illinois, is held. It is my desire, however, that any interest therein which I can by will devise shall be included in said trust and shall be sold within five (5) years after my death or within five (5) years after the death of my said wife, Minnie Jarmuth, whichever date shall be the later, and that the proceeds of such sale shall be divided equally between and paid over to my beloved daughter, Laura Heiby, and my beloved daughter, Minnie Beinberg, as their absolute property forever, and I hereby direct my said Trustees to do whatever can be done and shall be necessary to accomplish this purpose.
“(d) All the rest, residue and remainder of my estate, upon the death of my said wife, Minnie Jarmuth, my Trustees shall pay over and distribute to my said daughter, Minnie
Beinberg, as her absolute property forever. “(e) In the event of the death of my said daughter, Laura Heiby, before payment to her of any legacy in this will contained, said legacy shall lapse. In the event of the death of the said Minnie Beinberg before payment to her of any legacy herein contained, such legacy shall be paid and distributed to her husband, John Beinberg, or, in the event of his death, then to the.said Laura Heiby.
“(f) My Trustees shall be entitled to continue the business of the Mortar Supplies Company or any business owned or dominated by me at the time of my death, and to use any funds from either income or principal of my trust estate for the protection and preservation of the business of said company, and they shall have full discretion as to the manner of operation of said business and as to the manner of calculating the net profits and the net income thereof, as well as the net income of my estate generally. (Italics ours.)

“Third: In the event any beneficiary under this my Last Will and Testament shall take any steps to contest or oppose the probate of this will, said beneficiary shall forfeit all right to participate in said estate, and the share of the person so contesting the probate hereof shall go to the remaining beneficiaries hereunder.

“Fourth: I am conveying, assigning, transferring and turning over to my daughter, Minnie Eeinberg, certain properties, real and personal, which were heretofore conveyed, assigned, transferred or delivered to me in trust for her or for the purpose of protecting her interest therein.

“Fifth : I hereby nominate and appoint my daughter, Minnie Eeinberg, to be Executor of this my Last Will and Testament, hereby waiving all security on her bond as such Executor. In the event of her death or inability or refusal to act, I hereby nominate and appoint John Eeinberg as successor executor, and in the event of the death of both the said John Eeinberg and Minnie Eeinberg, or their resignation or inability to act, as executors or as trustees hereunder, then I hereby nominate and appoint Austin L. Wyman [also, an attorney who acted for the Eeinbergs] as successor executor and successor trustee, with all the powers and authority herein granted to my first-named Executor and Trustees.

“Sixth: My Executor or successor executor and my' Trustees shall have full power and authority to settle, compromise and compound any and all claims in favor of or against my said estate without securing an order of the Probate Court for that purpose, and it shall not be the duty of any person dealing with my said estate to look to the application of any moneys paid my said Executor, successor executor or Trustees. In general, my said Executor and successor executor and my said Trustees shall have all and singular the powers over my said estate which I might have and exercise if living.

“In Witness Whereoe I have hereunto set my hand and seal to this my Last Will and Testament, all on this 18th day of February, A. D. 1942.

[Signed] “John Jarmuth (seal) ”

In considering the provisions of the will it must be noted that the Beinbergs claim that on or before the date the will was executed Jarmuth had given to Minnie Beinberg practically all of the estate of which he was possessed. Her attorney testified that Dr. Keiser, who was also a witness to the will, assured him that Jarmuth had the mental capacity to sign the will and to execute stock transactions or gifts; that he read the will to Jarmuth very carefully and asked Jarmuth, “Is that what you want?” to which Jarmuth answered, “yes, that is what he wanted.” The will shows that Jarmuth considered that at the time he executed the will he owned the business of the Mortar Supplies Company, that he was leaving a substantial estate, and that he was providing for his senile wife by putting his estate in trust, primarily, for her benefit. The will clearly rebuts the claim of the Beinbergs that Jarmuth gave his entire estate, including the stock in the Mortar Supplies Company, to Minnie Beinberg. In making this statement we have not forgotten that Beinbergs’ attorney testified that after Jarmuth had signed and executed his will “John Beinberg and his wife came into the room, and the old man gave her, if I recall correctly, the stock certificates and the deed as a gift”; that at the same time Jarmuth gave the lawyer a power of attorney to transfer the said stock, but that he, the attorney, never made a transfer of the stock. The power of attorney does not name the party to whom the attorney was to transfer the stock. The examination of this attorney was of a perfunctory nature. He was not called upon to explain why Jar-muth asserted ownership of the stock in his will and made it a part of the trust primarily created for the benefit of his wife if he intended to give the stock to Minnie Reinberg immediately after he executed his will. If the theory of fact of the Reinbergs presents the real situation that surrounded Jarmuth at the time that he made the will, and assuming that he was of sound mind at the time and that Minnie Reinberg’s attorney read the will to him, then Jarmuth, in retaining in the will certain provisions, was perpetrating a cruel deception upon his aged, senile wife and his daughter Laura Heiby.

We will briefly refer to the other gifts which Minnie Reinberg claims were given to her by her father:

As to the $25,000 note item set up in paragraph 3 of the petition, Minnie Reinberg testified that her father gave her this note before he died. “Q. Did you ever pay that $25,000 back to your father? A. Not all of it. Q. How much did you pay back? A. Seventeen. Q. How? A. No, there is seventeen due on it. Q. You still owe $17,000 on it? A. That is right. Q. You didn’t inventory this balance due your father either, did you? A. No, because he gave it to me before he died. Q. How did he give it to you? A. Well by a gift. Q. You mean — did he hand you anything or just tell you you did not owe him that any more? A. I think he gave me back the note, but I don’t know just where the note is now. Q. You don’t know whether he gave it back to you? A. Oh yes, I know he gave it back to ine. Q. When? A. Oh, this was about a year and a half ago, I think. Q. A year and a half, that would place it before his first sickness in February, 1942? A. That is right. Q. He just handed you the note? A. Yes. Q. And says ‘That is yours’? A. Yes, to cancel it. Q. Who was present at that time? A. My husband. Q. Just you and your husband and your father? A. Yes. . . . Q. Did he hand you the note, or did he hand that to your husbandf A. I don’t remember who he gave it to, either one of us. ’ ’ She also testified that she and her husband made payments upon the note in different amounts “either $9,000 — ” (the answer was not completed) ; that they made the last payment in 1941 or 1942, ‘ ‘ somewhere along there. ’ ’ The judgment order in the instant case finds that John Reinberg was indebted to Jarmuth at the time of the latter’s death “in the sum of $17,430.25, being the balance due on his note of $25,000.00.” Petitioner strenuously contends that in any event the order should have found that Minnie Reinberg was also indebted to the estate for any, balance due upon the note. This contention is a meritorious one. Minnie Reinberg testified that she and her husband borrowed the $25,000 from her father and that they gave-him a note for that amount; that the payments made upon the note were made by her and her husband, and that her father “gave us back the note.” The testimony of Mrs. Brennwald, bookkeeper of Mortar Supplies Company, supports petitioner’s position. Tested by Minnie Reinberg’s testimony she, as well as her husband, owed Jarmuth whatever balance remained due upon the note. The record shows that the finding that John Reinberg, alone, owed the balance upon the note, is of no value to the estate. The law firm that represents respondents in the instant proceeding was kept busy defending creditors’ suits against John Reinberg, and in one of these suits John and Minnie Reinberg in a verified answer stated that the actual value of the assets of John Reinberg “is nil,” and that an offer of settlement which he had made “was made because at that time his friends and relatives, to spare him the embarrassment and stigma of imprisonment, offered and were willing to give him the sums offered in settlement; that said defendant then had and now has no security to offer persons willing to advance such sums, and that said sums were offered to him as a matter of personal friendship and with no real hope of repayment, and with no security therefor.” Respondents, in their assignment of cross-error in the instant case, contend that the evidence does not sustain the finding of the trial court that John Reinberg was indebted to the deceased at the time of his death in the sum of $17,430.25. This contention is without the slightest, merit and respondents make but a feeble effort to sustain it. They state that there is considerable confusion as to the amount, if any, that was due upon the note, but contend that the burden was upon petitioner to prove what was due and that she failed in that regard. The evidence clearly shows that both Reinbergs owed at least $17,430.25 upon the $25,000 note, but we are of the opinion that a proper investigation of this item will show that both Reinbergs owe upon the note a balance greater than $17,430.25. In view of the sworn answer of John and Minnie Reinberg’, heretofore referred to, it is certain that John Reinberg was not financially able to make any payments upon the note, and, strangely, Minnie Reinberg was not questioned as to the source of the money that she claims was.paid upon the note. If Minnie Reinberg’s vague testimony that her father at some time, not definitely fixed, gave her the $25,000 note is sufficient evidence to prove a gift inter vivos no estate would be safe from claims of this character. John Reinberg was not called as a witness in the examination proceedings. In the late case of Keshner v. Keshner, supra, the Supreme court said (p. 363):

“It is well known that courts lend a very unwilling ear to statements by interested persons about what dead men have said; that such evidence is subject to great abuse and that it will be carefully scrutinized as well as considered with all the other evidence in the case. (Megginson v. Megginson, 367 Ill. 168, 180; Fierke v. Elgin City Banking Co., 366 id. 66.)”

As to the item mentioned in paragraph 4 of the petition, Minnie Reinberg testified that her father owned a house in Skokie; that he sold it in December, 1942, and received in payment a check from the Chicago Title and Trust Company for $5,117.65 about April 1, 1943; that her father gave her the check to cash but that her husband cashed it. It is idle to argue that this evidence proves that Jarmuth made a gift inter vivos to Minnie Reinberg of the check or the proceeds from it.

As to the item contained in paragraph 6 of the petition, the trial court’s finding “that the other items claimed by Laura Heiby in her petition for citation as belonging to the estate of John Jarmuth, deceased, were given to Minnie Reinberg by the said John Jar-muth during his lifetime and do not belong to the estate,” is broad enough to include a finding by the trial court that Jarmuth had given to Minnie Reinberg “certain real estate located on Mozart St., Chicago, Cook County, Illinois.” If the trial court intended to so find the’evidence does not support such finding.

A careful study of the record creates a strong belief that upon a new trial of the examination proceedings to discover and recover assets of the estate it will be shown that there are other properties, real or personal, belonging to the estate of John Jarmuth which are not mentioned in the petition and which Minnie Rein-berg and her husband have converted to their own uses. In the inventory filed by Minnie Reinberg she does not show that there was any cash belonging to the estate and she was not questioned as to the bank account of Jarmuth of which she had joint control — in fact, sole control. Nor was there any examination made as to the affairs of the Mortar Supplies Company that was owned by Jarmuth.

We are satisfied that the examination was not conducted in accordance with the intent and purpose of par. 335, sec. 183 [Jones Ill. Stats. Ann. 110.432] of the Administration Act and that justice requires a new trial of the examination proceedings. Before a hearing is had the trial court should appoint a guardian. ad litem in accordance with the prayer of the petition, as the record demonstrates that Minnie Eeinberg is not a fit person to guard the interests of the estate. We may add that this record presents a clear case where the trial judge acting in pursuance of the powers conferred upon him by par. 337, sec. 185 [Jones Ill. Stats. Ann. 110.434] of the Act should take an active part in the examination to discover and recover assets of the estate.

The judgment order of the Circuit court of Cook county entered October 29, 1945, is reversed in toto and the cause is remanded for a new trial.

Judgment order entered October 29, 1945, reversed in toto and cause remanded for a new trial.

Sullivan, P. J., and Friend, J., concur.


author: Justice Bristow.

text:
    Clayton C. Harbeck, Sheriff of LaSalle County, and Walter W. Halm, Trading as Halm Motor Service, Appellees, v. Harry A, Lyon, Appellant.
    Gen. No. 10,069.
    opinion filed November 4, 1946;
    released-for publication December 10, 1946.
    Linwood Connellee and John H. Armstrong, for appellant; Van Peursem & McNeilly, for appellees.
   Opinion by

Justice Bristow.

Not to be published in full.


text:
    Richard Schweidler, Appellee, v. Gizella Schweidler, Appellant.
    Gen. No. 10,091.
    opinion filed November 4, 1946;
    released for publication December 10, 1946.
    Weaver & Weaver, for appellant; Harry G. Weaver, of counsel; Willard E. Cain, for appellee.
   Opinion by

Justice Bristow.

Not to be published in full.


author: Justice Dove.

text:
    Waukegan Times Theatre Corporation, Appellant, v. Nellie Conrad and Western and Southern Life Insurance Company, Appellees.
    Gen. No. 10,083.
    opinion filed November 4, 1946;
    released for publication December 10, 1946.
    Max M. & Samuel Grossman and George W. Field, for appellant; Max M. Grossman, Louis N. Grossman and Lester N. Grossman, of counsel; Snyder & Clarke and Ashcraft & Ashcraft, for appellees; Gerald C. Snyder and Norman L. Olson, of counsel.
   Opinion by

Justice Dove.

Not to be published in full.


text:
    Franklin F. Wingard, Administrator of Estate of Anna Peters; Deceased, Appellee, v. W. F. Peters et al., Defendants. W. F. Peters, Appellee, v. Mayme Lindburg and Harry L. Lindburg, Appellants.
    Gen. No. 10,090.
    opinion filed November 4, 1946;
    released for publication December 10, 1946.
    Andrew Kopp, for appellants; Robert G. Graham and James M. Johnston, for appellee.
   Opinion by

Justice Dove.

Not to be published in full.


text:
    Donald C. Allensworth, Appellant, v. Mary Weinberg et al., Appellees.
    Gen. No. 10,078.

      opinion filed November 4, 1946;
    released for publication December 10, 1946.
    Donald C. Allensworth, pro se; Woolsey, Stickney & Lucas, Burrel Barash, and H. Glenn Kinsley, for appellees.
   Per Curiam.

Not to be published in full.


text:
    People of State of Illinois ex rel. Donald C. Allens-worth, Appellant, v. E. R. Stevens et al., Appellees.
    Gen. No. 10,079.
    opinion filed November 4, 1946;
    released for publication December 10, 1946.
    Donald C. Allensworth, pro se; Woolsey, Stickney & Lucas, Burrel Barash and H. Glenn Kinsley, for appellees.
   Per Curiam.

Not to be published in full.


author: Justice Friend.

text:
    Therm-O-Proof Insulation Manufacturing Company, Marshall Decker and Edward Stange, Appellants, v. Philip Hoffman, Appellee.
    Gen. No. 43,539.

      opinion filed November 19, 1946;
    released for publication December 3, 1946.
    Arthur J. Goldberg, for appellants; Heth, Lister & Flynn, for appellee.
   Opinion by

Justice Friend.

Not to be published in full.


text:
    John H. Thompson, Appellee, v. Elgin, Joliet and Eastern Railway Company, Appellant.
    Gen. No. 43,443.
    opinion filed November 19, 1946;
    released for publication December 3, 1946.
    Knapp, Cushing, Hershberger & Stevenson, for appellant; Harlan L. Hackbert, of counsel; Lester E. Williams, for appellee; Leo S. Karlin, of counsel.
   Opinion by

Justice Friend.

Not to be published in full.


author: Presiding Justice Sullivan.

text:
    Melvin S. Nelson, Assignee of Gilbert Nelson, Appellant, v. Martin Powroznik et al., Appellees.
    Gen. No. 43,496.
    opinion filed November 19, 1946;
    released for publication December 3, 1946.
    James H. Burr and Francis M. Lowes, for appellant; Concannon, Dillon, Snook & Arthur, for appellees; Bruce S. Parkhill, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    Harry Stroik, Appellee, v. Priscilla Stroik, Appellant.
    Gen. No. 43,597.

      opinion filed November 19, 1946;
    released for publication December 3, 1946.
    Emmett M. McDonald and Earl Wilcox, for appellant; Kamm, Griglik & Kamm, for appellee; Casimir Griglik, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    Katherine Heinz, Appellee, v. Radio Keith Orpheum Western Vaudeville Exchange, Trading as The Palace Theatre, Appellant.
    Gen. No. 43,749.
    opinion filed November 19, 1946;
    released for publication December 3, 1946.
    Joseph A. Bailey, for appellant; James P. Moore, of counsel; Clarence M. Dunagan, for appellee.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    In re Estate of Charles Wm. Kuhn, Deceased. Forrest T. Dustin, Receiver, Appellant, v. Gladys Rucker Lohff and Henrietta Anna Wallin, Exec-cutrices of Estate of Charles Wm. Kuhn, Deceased, Appellees.
    Gen. No. 43,467.

      opinion filed November 19, 1946;
    released for publication December 3, 1946.
    Frisch & DeHaan, for appellant; George J. Fox, of counsel; Peter V. Fazio, for appellees.
   Opinion by

Justice Friend.

Not to be published in full.


text:
    Minnette Mosel, also known as Muretto Moselle and Mrs. Charles Mosel, Appellant, v. Morris Tucker, Trading as Tucker Furs, Defendant. Globe and Rutgers Fire Insurance Company, Appellee.
    Gen. No. 43,589.
    opinion filed November 19, 1946;
    released for publication December 3, 1946.
    Paul H. Heineke, for appellant; Samuel Levin, for appellee.
   Opinion by

Justice Friend.

Not to be published in full.


text:
    In re Estate of Michael P. Breen, Deceased. Marie K. Breen, Administratrix of Estate of Michael P. Breen, Deceased, Appellant, v. Marguerite F. Breen, Appellee.
    Gen. No. 43,677.
    opinion filed November 19, 1946;
    released for publication December 3, 1946.
    Fred L. Steers, for appellant; William G. Thon, for appellee.
   Opinion by

Justice Friend.

Not to be published in full.


author: Justice Scanlan.

text:
    Pasquale Raimondi, Appellee, v. Ziffrin Truck Lines and Dave Cave, Defendants. Ziffrin Truck Lines, Appellant.
    Gen. No. 43,542.

      opinion filed November 19, 1946;
    released for publication December 3, 1946.
    Barrett, Barrett, Costello & Barrett, for appellant; James A. Dooley, for appellee.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Michael Kelly, Appellee, v. Thomas J. Friel and Charles C. Renshaw, Trustees, Trading as Chicago Surface Lines, Appellants.
    Gen. No. 43,736.
    opinion filed November 19, 1946;
    released for publication December 3, 1946.
    James O. Dwight, John W. Costello and Arthur J. Donovan, for appellants; William J. Flaherty, of counsel; Francis J. Gariepy and Charles E. Mallon, for appellee.
   Opinion by

Justice Scanlan.

Not to be published in fuU.


author: Presiding Justice Dady.

text:
    Orval E. Linn, Appellee, v. Dorothy C. Linn, Appellant.
    Gen. No. 9,534.
    opinion filed November 20, 1946;
    released for publication December 17, 1946.
    C. C. Martin and F. R. Wiley, for appellant; James S. Baldwin, for appellee.
   Opinion by

Presiding Justice Dady.

Not to be published in full.


author: Garnett, P. J.

text:
    First District
    October Term, 1888.
    Chicago & Grand Trunk Railway Company v. Cornelius T. Crolie.

      Practice —Insufficient Abstract—Railroads — Negligence — Injury to Horse during Transit.

    This court declines to consider an action to recover from a railroad company for injury to a horse during transit, for the reason that the abstract does not contain the substance of those parts of the record upon which error .is assigned as required by rule twenty-one.
    [Opinion filed April 17, 1889.]
    Appeal from the Circuit Court of Cook County ; the Hon.
    A. N. Waterman, Judge, presiding.
    Mr. F. H. Culver, for appellant.
    Mr. William Bunn, for appellee.
   Garnett, P. J.

The abstract of record filed in this case does not satisfy the 21st rule of court. It is nothing more than an index, and fails to show anything upon which error may be assigned. The supplemental abstract filed by appellee does give what purports to be an abridgment of the evidence of some of appellee’s witnesses, but wholly fails to remove the objection we make, as we should still be obliged to examine the record itself on all the questions argued.

Appellant’s grounds for its motion to suppress depositions are not given in the abstracts. The bill of exceptions shows 133 pages of testimony, while only three and one-half pages of the abstract are employed in setting forth what the witnesses said. About all we can ascertain of the evidence from appellant’s abstract is, that Crolie shipped a mare over appellant’s road; that she was injured and died from the injury; that appellant and appellee disagreed as to the question of negligence of appellant, and that the witnesses disagreed as to the quality and value of the animal. The abstract ■ then states that instructions were given for plaintiff, others were given for defendant, and others asked for defendant, but refused. What the instructions were that were given or refused, or whether any exceptions were taken to those given or to the refusal of others asked by appellant is not stated. If we must accept such an abstract, the rule of court referred to is not of any benefit and might as well be repealed. ' The intention of the rule is to require a presentation in the abstract, in substance, of those parts of the record upon which error is assigned. Any material departure from this regulation is fatal to appellant’s right to a hearing on the merits in this court. Johnson v. Bantock, 38 Ill. 111; Major v. Collins, October Term, 1888, of this court; The People v. Angerer, 23 Ill. App. 450.

The judgment is affirmed for want of compliance with the rule.

Judgment affirmed.


author: Gary, J.

text:
    George S. Poppers v. Mary J. Meager.
    __ _ _ Landlord and Tenant—Recovery of Rent—Judgment by Confession— Warrant of Attorney—Issuance of Execution before Completion of Record of Judgment.

    Upon motion to set aside judgment by confession for rent due and unpaid, it is held: That the warrant of attorney was not defective for failing to name any particular attorney; that the claims for unliquidated damages urged as a set-off, should not be considered, not being in any wise connected with the demand for rent; and that the fact that the judgment was entered by the clerk in term time, would justify the issuance of an execution before the record of the judgment was complete.
    [Opinion filed April 17, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. E. W. Clifford, Judge, presiding.
    Mr. Thomas Shirley, for appellant.
    Mr. L. H. Boutell, for appellee.
   Gary, J.

Ho more shall the genial smile of the counsel for the appellant beam upon the bench or bar of Chicago. Tom Shirley is dead. His forty years of service in the courts of Cook county are ended in the grave.

June 25, 1888, the appellee filed in the Circuit Court the proper papers for a judgment by confession for rent due to her from the appellant, upon a lease from her to him, pursuant to a warrant of attorney contained in the lease. He made a motion to set aside the judgment, which was denied June 27, 1888. First, it is objected that the warrant is to confess not only a judgment for rent, but also upon a complaint in forcible detainer, and only a part of the power is executed. Ho argument or authority to support this objection is made or cited, and the validity of it is not self-evident. The practice of thus entering judgments for the rent is common, and has never been questioned. Second, that the power is to any attorney, and to no one by name, is answered by the cases Hall v. Jones, 32 Ill. 38, and Keith v. Kellogg, 97 Ill. 147. Third, the claims for unliquidated damages, which are urged as a set-off, are not connected with the demand for rent. Hawks v. Lauds, 3 Gilm. 227; DeForrest v. Oder, 42 Ill. 500; Kobison v. Hibhs, 48 Ill. 408; Hubbard v. Rogers, 64 Ill. 434; Evans v. Hughey, 76 Ill. 115. The last and what at first blush might seem a serious objection, is that when execution issued upon the judgment and was levied, and even when the motion was denied, the judgment had not been written up upon the records of the court. On a judgment by confession entered by the clerk in vacation, execution may not issue before the record of the judgment is complete. Ling v. King, 91 Ill. 571; hut in term1 time it may; Weigley v. Matson, 125 Ill. 64; Sec. 14, Act in relation to clerks, March 25, 1874; Schirmer v. People, 33 Ill. 276.

This appeal does not bring before this court the judgment itself, but only the order denying the motion to vacate it. Lake v. Cook, 15 Ill. 353; Frear v. Comm. N. Bk., 73 Ill. 473 ; Hall v. Hamilton, 74 Ill. 437. That motion was rightly decided.

Judgment affirmed.


text:
    George S. Poppers v. Mary J. Meager.

      Landlord and Tenant—Distress for Rent—Act of May Í, 1873, Sec. SO —Secs. 42 and 53, Starr & C. Ill. Stat.—Costs—Secs. 25 and 26, Act of 1874—Agency—Ratification.

    1. Upon a contention as to whether a landlord, in a proceeding on a distress warrant wherein the property seized had been released on a forthcoming bond, was entitled to recover the expense of the custody of the goods levied upon before they were so released, this court holds that the same method of defraying expenses of this character should be pursued in cases of distress, as in attachment; that the jury are not authorized to tax such costs, but that such allowances should be ascertained by the court; and that no injury has been done the defendant by reason of the finding of the jury upon this point, the same having been accepted by the court as reasonable and proper.
    2. Without a judgment in his favor the plaintiff is not entitled to costs; if a cause of action is extinguished pendente lite, a right to a recovery, and with it the title to costs, is gone.
    3. Proof of agency is not necessary in case of the bringing of suit by an alleged agent in behalf of his principal, when the latter adopts such act by prosecuting the same.
    [Opinion filed April 17, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Mr. Thomas Shirley, for appellant.
    Mr. L. H. Boutell, for appellee.
   Gary, J.

April 6, 1887, there was filed in the Superior Court a distress warrant, purporting to be by the appellee against the appellant, by Baird & Bradley, agents. Goods of the appellant had been levied upon, under this warrant, May 3,1887, the appellant pleading nil debet, and the case was afterward tried on that issue by a jury. In the meantime the rent, for which the warrant issued, had been paid, in compliance with a decree of the Circuit Court in a chancery suit, by the appellant against the appellee, to enforce the specific performance of an agreement for a renewal, for a further term, of the lease under which the rent distrained for had accrued.

On the trial a witness was permitted to state, against the exception of the appellant, that Baird & Bradley were the agents of the appellee, although, as the witness said, the appointment was in writing. Ho proof of the agency was necessary. The only issue for the jury to try was as to the indebtedness, and the prosecution of the suit by the appellee was such an adoption of the act of the supposed agents as would have made any proof of the agency superfluous, if any question could have been made about it. Connett v. Chicago, 114 Ill. 232.

The expense of the custody of the goods levied upon, before they were released by a bond, was proved on the trial to have been §15, and for that sum the jury rendered a verdict in favor of the appellee, and the judgment from which this appeal is taken was entered upon that verdict. This allowance of expenses is assigned as error. Under Sec. 20 of the act of May 1,1873, relating to landlord and tenant, the proceedings upon distress warrants are to be “ in the same manner as in case of attachment.” Under the statutes now in force as to fees, constables shall be allowed reasonable charges to be fixed by the justice, for removing and taking care of property levied upon by them” and “for taking possession of or removing property levied on, the sheriff shall be allowed to tax the necessary actual costs of such possessions or removal.” Secs. 42 and 53, Chap. 53, Starr & C. Ill. Stats.

In proceedings by attachment such expenses are part of the costs (Olds v. Loomis, 10 Ill. App. 498), and in cases of distress, the same duties which devolve upon sheriffs and constables in attachment in levying upon and taking care of the property, are to be performed by the bailiff executing the warrant. The fair construction of the statute is that the same method of defraying expenses shall be pursued in cases of distress as in attachment. The jury, therefore, had nothing to do with the question, as the taxation of ordinary costs is the function, primarily, of the clerk. Sec. 25, Act 1874, Costs subject to retaxation by the court, Sec. 26. But the amount of allowances of this character is to be ascertained by the court. Olds v. Loomis, 10 Ill. App. 498.

The appellant is not injured by mode adopted, as the court, in a proper case, must have allowed the expenses which it has, by adopting the verdict, found to be proper charges. But such allowances being costs, the party is not entitled to recover them, unless he is, by statute, entitled to costs. “JSTo final costs were recoverable by the plaintiff or defendant at common law. ” 2 Tidd’s Pr. 945.

Without a judgment in his favor, for the thing sued for, debt, damages, chattels or land, the various statutes do not provide for any final costs to the plaintiff. If his cause of action is extinguished pendente lite, his right to a recovery, and with it his title to the costs, is gone. Sweetland v. Tuthill, 54 Ill. 215.

The judgment must be reversed, but as no further proceedings can be had in the cause, it is useless to remand it.

Judgment reversed.


text:
    City of Chicago v. John P. Altgeld.

      Municipal Corporations—Grading of Street—Injury to Private Property —Corporation Counsel—City Attorney—Conflict of Authority—Buie of Court.

    1. The rule requiring exceptions to be taken to the rulings of trial courts in order to present them for review in this court, is as strictly applicable to municipal corporations as to natural persons, and it is likewise applicable in cases where the liberty of the citizen is involved.
    2. In an action brought against a municipality for the recovery of damages for an injury to private property, occasioned through raising the grade of one of its streets, the burden of proof is upon the plaintiff to show that the injurious act was committed while he was owner of the premises injured.
    1 3. In the case presented, this court holds that the conduct of the plaintiff with reference to the institution of suit, and the trial thereof, was open, fair and honorable in every respect.
    [Opinion filed April 17, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. A. H. Waterman, Judge, presiding.
    Messrs. John W. Green and Clarence A. Knight, for appellant.

      Mr. Eugene E. Prussing, for appellee.
   Garnett, P. J.

Appellee sued appellant in an action on the ease to recover damages to his property caused by raising the grade of the street on which it fronted.

About the time the suit was brought, the city attorney agreed to have the case tried speedily, and out of its order. A misunderstanding then arose between the city attorney and the corporation counsel, the latter insisting that the case should not be tried under the stipulation. When the case was called for trial on June 18,1888, the time agreed on, the corporation counsel appeared in court, claimed the legal right to conduct the defense, and moved for a continuance or postponement for a reasonable time to prepare the defense. The motion was overruled, the trial proceeded and judgment was rendered for appellee for $26,494.60, from which the city brings this appeal.

The Circuit Court is said to have erred in refusing to permit the corporation counsel, instead of the city attorney, to control the litigation, in disregarding his motion for a continuance or reasonable time to prepare the defense. The correctness of the ruling is not presented by this record, as no exception was taken thereto, and we should exceed the bounds of propriety in entering upon a discussion of the relations of the two city law officers to each other, or to the corporation. The rule requiring exceptions to be taken to the rulings of the trial courts, in order to present them for review in this court, is as strictly applicable to municipal corporations as to natural persons. So rigid is the rule that it is applied even in cases where the liberty of the citizen is involved. Hughes v. The People, 116 Ill. 330. The record shows that appellee acquired title to the property in question on September 26, 1887, but there was no evidence tending to prove that the raising of the grade which caused the injury was done, in whole or in part, after the title was vested in appellee. The only evidence as to the time when the grade was raised was given by the witness, Wain, and he only testified that the work was done within a year, and neither the court nor the jury would be warranted in inferring that it was done after September 26, 1887. His evidence was given June 18, 1888. The work might have been done between June 18, 1887, and September 26, 1887, and if it was, appellee would have no right of action. For such injuries, only the owner of the land at the time of the act so complained of, can recover damages. C. & A. R. R. Co. v. Maher, 91 Ill. 312; C. & E. I. R. R. Co. v. Loeb, 118 Ill. 203. The burden is on the plaintiff to show that the injurious act was committed while he was owner of the premises.

Considerable feeling having been manifested in the case, and the counsel for the city on the oral argument having expressed the hope that decision might be made which would not reflect on the appellee, and as, under such circumstances our silence on the subject may be misconstrued, we think it but right to say that, from the facts disclosed by the record, it appears that the course pursued by the appellee was fair, open and free from any just grounds for censure. For want of evidence on the point noted the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Per Curiam.

text:
    Leonard Hodges v. Eldora Percival.

      Master and Servant—-Incompetent Servant—Unsafe Elevator—Injury to Third Person—-Action for Damages.

    In an action against the owner of a building for damages for a personal injury alleged to have been occasioned by the employment of an incompetent servant and the use of an unsafe elevator, this court declines to interfere with a verdict for the plaintiff.
    [Opinion filed April 17, 1889.]
    Appeal from the Superior Court of Cook County; the Hon, Joseph E. Gaby, Judge, presiding.

      Messrs. Stiles & Lewis and Shuman & Defrees, for appellant.
    Messrs. Brandt & Hoffman and Joseph 1ST. Barker, for appellee.
   Per Curiam.

This is an appeal from a judgment of $1,500, in favor of appellee and against appellant, for the injury received by the falling of an elevator in appellant’s building.

The questions are almost identical with those made in the case of Hodges v. Bearse, decided at the October term of this court and now pending in the Supreme Court, the appellee in that case and appellee in this having been both injured by the same accident. It would be entirely useless for us to state the case and the questions made. We have examined the record and find that the evidence clearly supports the verdict, and there is, in our opinion, no error of Jaw. The judgment will therefore be affirmed.

Judgment affirmed.

Gary, J., takes no part in this case in this court.


author: Moran, J.

text:
    J. Obermann Brewing Company v. Caroline Ohlerking.

      Landlord and Tenant—Rent—Guaranty of Payment—Notice of Lessee's Default—Attorney's Fees—Interest—Costs.

    1. The entering into a written guaranty, upon a lease for the payment of the rent provided for therein, amounts to an admission of the due execution thereof.
    2. The liability of a guarantor is in no wise affected by the failure of the lessor to give notice of the lessee’s default.
    3. While it is erroneous in such action to allow the recovery of attorney’s fees and costs in entering judgment against the lessees, no complaint can be made thereof, where the record shows that no objection was made or exception taken, when the evidence touching the same was introduced, and that the attention of the court was in no manner called to the excessive verdict when a motion for a new trial was overruled.

      [Opinion filed April 17, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. E. W. Clifford, Judge, presiding.
    Mr. B. M. Shaffnse, for appellant.
    Mr. William Hura, for appellee.
   Moran, J.

This action was brought by appellee against appellant on a guaranty indorsed on a lease in the following terms: “ For value received we hereby guarantee the payment of the rent and the performance of the covenants by the party of the second part in the within lease covenanted and agreed, in manner and form as in said lease provided.” The proof showed that rent, to the amount of 8525, was due, and that attorney’s fees to the amount of 825, and 86 costs were paid by plaintiff in attempting to enforce the covenants of the lease against the lessee, and there was a verdict and judgment for 8556.

On this appeal it is urged for reversal, first, that the court erred in admitting the lease in evidence without proof of its execution. To this objection there are two answers: 1. The evidence in the record shows that the execution of the lease was duly proved. 2. Appellant, having executed the guaranty on the back of the lease, was estopped to deny that the lease was duly executed by the lessees, whose covenants it has guaranteed shall be performed. Entering into the guaranty was an admission of the due execution of the lease, and the guarantor is not permitted to aver against such admission or to controvert it by proof. Otto v. Jackson, 35 Ill. 349.

Second. It is said that plaintiff had no right to recover, as there was no proof that appellant had notice of the default of the lessees in the payment of the rent. There is nothing in the objection. It was the duty of the grantor to see that the rent was paid by the lessees. The liability on the guaranty is primary, and no notice was necessary. Voltz v. Harris, 40 Ill. 155.

Third. It is urged that it was error to allow the recovery of attorney’s fees and costs in entering judgment against lessees. It is true that attorney’s fees and costs were not recoverable against appellant, but it was liable for interest on the installments of rent as they became due, and the judgment is only about $5 more than it would have been if the fees and costs had been excluded and interest allowed. We can not reverse the judgment for this error, because the record shows that no objection was made or exception taken when the evidence as to the attorney’s fees and costs were introduced, and that the attention of the court was in no manner called to the excessive verdict when the motion for new trial was overruled. To avail of such an error the party must, by general or specific objection, make it a ground for granting a new trial, and when that is not done the defendant will be regarded as having waived the objection. Jones v. Jones, 71 Ill. 562; Leyenberger v. Paul, 25 Ill. App. 480.

There is no error which authorizes interference by this court with the verdict, and the judgment of the Circuit Court must therefore be affirmed.

Judgment affirmed.

hTos. 62, 63, 64 and 65 at the present term between the same parties are affirmed, for the reasons stated in the foregoing opinion.