text:
    Oliver Decker v. Homer Decker et al.

      Filed at Mt. Vernon June 20, 1887.

    1. Wills—construction, aided by parol evidence—in the case of a latent ambiguity. While the general rule is, that the intention of the testator is to be gathered from an inspection and consideration of the will, and from no other source, yet,.in case of latent ambiguity, courts do and must listen to extrinsic evidence,—not for the purpose of contradicting or adding to the terms of the will, but for the purpose of determining the existence or nonexistence of latent ambiguity, and to enable the court to look upon the will in the light of the facts and circumstances surrounding the testator at the time the will was made, whereby to determine the intention of the testator.
    2. Same—parol evidence to aid the description of land devised. A testator devised to his son “twenty acres off the west half of the north-east quarter of the north-east quarter of section 33, township 18 north, range 11 west, ” and the evidence showed that he never owned the north-east quarter of the north-east quarter of this section 33, or any part of it, but that he did own the north-west quarter of the north-east quarter of that section: Held, that there was a latent ambiguity in the devise, the descriptive words, of the subject of the devise being in part false, and that if, after striking out so much of the description as was false, enough remained in the will, interpreted in the light of surrounding circumstances when the will was made, to identify the premises, the devise would be good.
    3. By the admission of such extrinsic evidence, no words are inserted in the description which were left out by mistake, and nothing is added to the will, but only the false part of the description is rejected; and it being evident that the testator intended to devise land owned by him lying in the north-east quarter of section 33, township 18 north, range 11 west, and as he owned no land in that quarter except the north-west quarter thereof, it is clear that he intended to devise the twenty acres off the part of the quarter he owned. This case is to be distinguished from Kurtz v. Hibner, 55 111. 514, where the court was asked to insert or substitute words of description in place of those used, and where, after rejecting that part of the description which was false, there were no words used from which the land could be identified.
    4. Same—Bequest of “money”—what will pass thereby. The general rule is, that a simple bequest of money, in the absence of anything in the context to show that the word “money” is used out of its ordinary or popular signification, will not include personal estate in general, but will be confined to money strictly so called.

      5. Where the word "money” or “moneys” is used in a will in reference to the residuum of the personal estate after the payment of legacies, debts, etc., and where a contrary construction would leave a large part of the estate undisposed of by the will, these circumstances will incline the courts to hold that a bequest of money “remaining,” was used to signify the residue of the personal estate.
    6. Same—and herein, whether debts amd funeral expenses are made a charge upon realty to the exclusion of the personalty. A testator, after providing for the payment of his just debts and funeral expenses, devised all of his lands to his son and a grand-daughter and a grand-son, and then directed, “If there is any money remaining after my death, it shall be equally divided between” the grand-son and grand-daughter. The testator left in cash only $368, and some $7592, money loaned: Held, that the grandchildren, under the words, “any money remaining,” took the entire personal estate remaining after the payment of debts and funeral expenses, including the moneys loaned. The formula, “after the payment of funeral expenses and just debts, I give,” etc., preceding the subsequent dispositions of the testator’s real and personal property, indicated no purpose on his part to specially charge his realty with such debts and expenses, to the exclusion of the personal property, but left it for the law to determine which should be primarily liable.
    7. Same—after acquired property—whether it will pass. In the absence of anything showing a contrary intention, no reason is perceived why after acquired property will not pass under a residuary clause in a will, sufficiently general to embrace it, the same as if owned by the testator when he executed the same.
    Writ of Error to the Circuit Court of Cass county.
    Mr. E. W. Mills, and Mr. James McCartney, for the plaintiff in error:
    Although a simple bequest of money will not, of itself, pass stock or personal property, yet the word may be so used as, from the whole context of the will, to show that the testator meant it to pass stock and other personal estate. 2 Williams on Executors, 1190; 1 Jarman on Wills, 769; Mann v. Mann, 1 Johns. 231; Larner v. Larner, 3 Drewry’s Ch. 704; Lowe v. Thomas, 5 DeG., M. & G. 315 ; Morton v. Perry, 1 Metc. 446.
    Courts are inclined to construe a residuary bequest in such a way as to make it a vested one, rather than leave a partial intestacy. 1 Jarman on Wills, 851.

      If the testator has declared his intention to dispose of all his property, the word “money” may he held to include promissory notes, as otherwise the property might not all be disposed of by the will. 2 Williams on Executors, 1190; Paul v. Ball, 31 Texas, 10; In re Miller, 48 Cal. 165; Morton v. Perry, 1 Metc. 446; Beatty v. Lalor, 15 N. J. Eq. 108; Mann v. Mann, 1 Johns. Ch. 231; 14 id. 1; Faulkerson v. Chitty, 4 Jones Eq. 244.
    Where there is no money upon which the bequest can operate, the meaning will sometimes be extended to stock in the public funds. Chapman v. Reynolds, 6 Jar. (N. S.) 440; Perkins v. Mathes, 49 N. H. 107; Smith v. Davis, 1 Grant, (Pa.) 158; 1 Redfield on Wills, 438.
    “Money” means gold and silver coin and bank notes only. Hotham v. Sutton, 15 Ves. 319; Beck v. McGillis, 9 Barb. 35; Paup v. Sylvester, 22 Iowa, 371; Dabney v. Cotteral, 9 Gratt. 572.
    If the W'ords of a will leave the intention doubtful, the will must be construed according to the legal import of the words used. Annable v. Patch, 3 Pick. 360; Osgood v. Lovering, 31 Me. 464; Thelluson v. Woodford, 4 Ves. 329; Griffith v. Coleman, 5 J. J. Marsh. 600.
    A technical meaning will always be given to technical words, unless clear evidence of a contrary intention is furnished. Francis’ Estate, 75 Pa. St. 220; Mowatt v. Carow, 7 Paige, 328; Howe v. Van Shaik, 3 N. Y. 538; Lawrence v. Hebbord, 1 Bradf. (N. Y.) 252.
    Plain language used in a will can not be set aside upon a suspicion of a different intention. 2 Jarman on Wills, 373; 2 Williams on Executors, 1188; Jenkins v. Van Schaak, 3 Paige, 242; Taylor v. Wendel, 4 Bradf. 324; Smith v. Burch, 92 N. Y. 228.
    Cases construing the meaning of the word “money” in a will: Williams v. Williams, 8 Ch. Dis. 789 ; Manning v.Purcill, 56 Eng. Ch. 55; Byrom v. Brandrelh, L. R. 16 Eq. 475;
      In re Mason’s Will, 34 Beav. 490; Low v. Thomas, 54 Eng. Ch. 315; Parker v. Merchant, 19 id. 355; Fryer v. Rankin, 11 Sim. 55; Wait v. Combes, 5 DeG. & S. 676.
    If a sufficient description remain to identify the object of the devise, the false will be rejected, and the gift sustained. Fitzpatrick v. Fitzpatrick, 36 Iowa, 674.
    For a general discussion of the doctrine of misnomer and misdescription, see 1 Jarman on Wills, 376.
    The word “my, ” in this clause, is a part of the description of the land, and when it appears that the testator did not own the land specifically described, it is certainly competent to-identify the property intended, by parol evidence, which is always admissible to explain a latent ambiguity. Bowen v. Allen, 113 Ill. 53.
    Messrs. Morrison & Whitlock, for the defendants in error r
    The will should be read as a whole, in the construction of any part thereof. 3 Jarman, 669; Smith v. Taylor, 21 Ill. 296; Bergan v. Cahill, 55 id. 160; Markillie v. Ragland, 79 id. 98; Rountree v. Talbott, 89 id. 246.
    It will be presumed in the case of a will, that the testator intended to dispose of his entire estate. Redfield on Wills, 442; Higgins v. Dwen, 100 Ill. 554; Smith v. Smith, 17 Gratt. 268; Irwin v. Zane, 15 W. Va. 646.
    In Rogers v. Thomas, 2 Kee, 8, where a testatrix, after giving-various pecuniary and specific legacies, bequeathed to the-inhabitants of T. row, all which might remain of her money after her lawful debts and legacies were paid, Lord Langdale, M. R., held the charge of debts and legacies sufficient evidence of the testatrix’s intention to include the general residue in the bequest of “all which might remain of money.”" See, also, Kendall v. Kendall, 4 Russ. 360; Phillips v. Eastwood, 1 Ll. & Go. 291; Barrett v. White, 1. Jur. (N. S.) 652; Grosvenor v. Durston, 25 Beav. 99; Stocks v. Bane, Johns. 54 ; Dawson v. Gaskoin, 2 Kee, 14.

      We insist, first, that the words, “money remaining after my death, ” mean personal property when converted into cash, as well as cash; second, that the will can not be corrected or explained by parol evidence as to the twenty-acre tract claimed by Oliver; third, that even if there were error in the decree, Oliver Decker was not affected by it, and can not question it on appeal; fourth, that the after acquired real estate passed to the residuary devisee, Homer, under the will; and fifth, that the legal presumption is, and the contents of the will show, that it was not the intention of the testator to leave any part of his estate intestate.

   Mr. Justice Shops

delivered the opinion of the Court:

This writ of error brings before us for review a decree of the circuit court of Cass county, giving' construction to the last will and testament of John Decker, late of Cass county, deceased. The testator, at the time of his death, left Oliver Decker, a son, and Bosina and Homer Decker, two minor grand-children, his only lineal descendants, and devisees under the will. Oliver was of full qge, and is made executor of the will. The estate of the deceased, at the time of his death, consisted of a number of tracts of land, and something over $8000 in personal property, consisting chiefly of $368.70 cash, and $7592.75 loaned money. Besides this, there were various articles of household furniture, and other articles of but little value, the whole of which were perhaps worth but little, if anything, over $100. The condition of the estate at the time the will was made, was about the same that it was at the time of the testator’s death, the only difference being, the amount of loans was somewhat increased by the accumulations of interest.

As questions are raised on the argument upon all the clauses of the will, it can be considered more conveniently by setting the instrument out in extenso. Omitting the formal parts at the beginning and conclusion, it is as follows:

“First—After the payment of funeral expenses and just •debts, I give, devise and bequeath to my son, Oliver Decker, a part of my real estate, to-wit: The south-east quarter of the south-east quarter of section 19, and the west half of the north-east quarter of section 29; also, twenty acres off the west half of the north-east quarter of the north-east quarter •of section 33,—all in township 18 north, range 11, west of the third principal meridian,
“Second—My grand-daughter, Eosina Decker, shall have the west half of the north-east quarter of section 28, thirty acres •off the east half of the north-west quarter of section 28, thirty .acres off the east half of the north-east quarter of section 29, thirty acres off the north-east quarter of the south-east quarter of section 28, all in same town and range,—the last mentioned lot to contain forty acres, more or less,—and west half, north-west quarter, of section 28, same town and range.
“Third—That the following property be equally divided between my son, Oliver Decker, and my grand-daughter, Eosina Decker: The north-east quarter of the north-east quarter of section 27, and sixteen acres off the north side of the north-west quarter of the north-east quarter of section 27, and twenty-two acres, part of the north-west quarter of the north■east quarter of section 27, township 18, range 10, which lies south of sixteen acres off the north side of said north-west quarter of the north-east quarter of said section 27, and the north end of the south-west quarter of the north-east quarter ■of section 27, containing twenty-six and one-half acres.
“Fourth—My grand-son, Homer Decker, shall have all my real .estate remaining and belonging to me, after taking therefrom the real estate bequeathed to my son, Oliver Decker, and grand-daughter, Eosina Decker.
“Fifth—If there is any money remaining after my death, it shall be equally divided between Eosina Decker and Homer Decker. ”

As the most important question, and the one about which we have had the greatest difficulty in arriving at a satisfactory conclusion, arises on the construction of the fifth clause, that clause will be considered first.

The difficulty consists in determining what the testator intended by the expression, “any money remaining after my • death.” It is clear enough that whatever was intended to be ■ embraced within that description, was to be divided between the two grand-children. Plaintiff in error contends that the testator intended by it to include the amount of actual cash in his possession at the time of his death, and nothing more. Defendant in error, on the contrary, maintains, that by the •expression in question, the testator intended to include, not particularly the amount cash on hand at the time of his ■ death, but the residue of his entire personal estate after the payment of all debts and funeral expenses. The general .rule undoubtedly is, that a simple bequest of money, in the ■absence of anything in the context to show that the word ‘“money ” is used out of its ordinary or popular signification, •will not include personal estate in general, but will be con■'fined to money strictly so called. • (2 Williams on Executors, *1190.) On the other hand, it is equally clear that the word “money” or “moneys” is often employed in making testamentary disposition under circumstances hardly distinguish.■able from the present, in the general sense of property or ■personal estate. When the term is thus used, it most generally has reference to the residuum of the personal estate after ■certain charges upon it have been satisfied, such as the payment of funeral expenses and the like, as is claimed to be the ■case here. Moreover, an examination of the cases will show, -that generally, where this construction has been adopted, the ■contrary view would have resulted in leaving a portion of the testator’s estate undisposed of by the will,—a view which courts are always disinclined to adopt, on the ground that it is contrary to the presumed intention of the testator. Such would be the case here if the word “money, ” as it occurs in the fifth clause of the will, is to be restricted to cash in the-actual possession of the testator at the time of his death. After a careful consideration of the entire will, in the light, of the authorities bearing upon the question, we are satisfied that both of the circumstances mentioned as having a. controlling influence with the courts in construing the word, “money” in its enlarged or extended sense, are present in this case, and therefore demand that construction. That the-construction contended for by the plaintiff in error would result in making the great bulk of the personal estate intestate-property, is manifest. That the term “money, ” in the connection used,, was intended to express the residuum of the personal estate after the payment of all debts and funeral expenses, is strongly fortified by the implication arising from the use of the qualifying word “remaining, ” is equally clear.

This conclusion, however, is sought to be overcome by what we regard as a very strained and unnatural construction of the first clause of the will. The claim is, that the payment of the debts and funeral expenses is, by the introductory words of the will, made an express charge upon the real estate, to the exclusion of the personal estate. We perceive nothing in the language relied on that warrants such a conclusion. The fact that the dispositions of the will, including both realty and personalty, are preceded by the formula, “after the payment of funeral expenses and just debts, I give,” etc., indicates, no purpose on the part of the testator to specially charge his-realty with such debts and expenses. The manifest intention, of the testator in using the language in question was, to make-all the bequests of the will, whether of personalty or realty,. ■ subject to the payment of his debts, leaving it to the law to-determine the order in which the real and personal assets should be liable. And since the law requires the personal assets to be exhausted before resort can be had to the realty, (a fact which we must presume the testator had in his mind at the time of drawing his will,) the reason is apparent why the final bequest in the fifth clause is preceded by the qualifying ■expression, “if there is any money remaining,” etc. We are unable to perceive anything to which the word “remaining, ” as it occurs in the fifth clause of the will, could refer, except the residue of the personal estate after the payment, of debts and funeral expenses; and hence we conclude,that the term “money, ” qualified as it is by the word “remaining, ” was used to signify such residue. And our conclusion in this respect is strongly fortified by the further consideration, that any other construction would lead, as we have already seen, to making the great bulk of the personal estate intestate qu'operty.

In addition to this, we think the use of the expression, “money remaining, ” instead of, “personal estate remaining, ” ■or some like expression, is sufficiently accounted for by the fact that the great bulk of the personal property consisted, as is commonly said, of loaned money. This was true both at the time of making his will and at the time of his death. It was in this peculiar sense he doubtless used the word “money, ” as it covered, appropriately enough, all his personal estate, except a few insignificant chattels. Moreover, we think this view of the question is fully sustained by the authorities. Redfield on Wills, 442; 2 Jarman on Wills, *768, et seq.; Higgins v. Dwen, 100 Ill. 554; Smith v. Smith, 17 Gratt. 268; Irwin v. Zane, 15 W. Va. 646.

The next question to be considered arises under the first ■clause of the will. By it there is given to plaintiff in error “twenty acres off the west half of the north-east quarter of the north-east quarter of section 33,” township 18 north, range 11, west of the third principal meridian.

The evidence shows that the testator never owned the north-east quarter of the north-east quarter of this section 33, or any part of it; but it also shows that he did own the north-west quarter of the north-east quarter of that section. So far as appears from the record, the only lands owned by the testator in section 33 was the north-west quarter of the; north-east quarter,—forty acres. No part of it was specifically devised or otherwise referred to in the will, and the same-would, therefore, pass, under the fourth clause of the will, to the residuary legatee, unless it shall appear to have been, devised to plaintiff in error, as is contended by his counsel,, under the first clause of the will above quoted.

There is said to exist a latent ambiguity, arising under the-evidence dehors the will; and that the provisions of the will, read in the light of this extrinsic evidence, sufficiently make it appear that the devise to plaintiff in error, under this first clause-of the will, was of a part of this north-west quarter of' the north-east quarter of said section 33. While the general, rule undoubtedly.is, that the intention of the testator is to be-gathered from an inspection and consideration of the will, and from no other source, in case of latent ambiguity courts-do and must listen to extrinsic evidence,—not for the purpose of contradicting or adding to the terms of the will, nor to wrest the words of the testator from their natural operation, but for the purpose of determining the existence or nonexistence of latent ambiguity, (for a latent ambiguity can only be shown by extrinsic evidence,) and for the further purpose-of enabling the court to look upon the will in the light of the facts and circumstances surrounding the testátor at the time-the will was made, whereby to determine the intention of the-testator. (Gilmer v. Stone, 120 U. S. 586.) “The law is not so unreasonable,” says Mr. Wigram, “as to deny to' the reader' of an instrument the same light which the writer enjoyed.”" Wigram on Wills, (2d Am. ed.) 161. See, also, Brearley v. Brearley, 1 Stockt. Ch. 21; Perry v. Hunter, 2 R. I. 80.

It is further to be observed, that as a latent ambiguity is-only disclosed by extrinsic evidence, it follows, that if removable at all, it may be removed by extrinsic evidence. (Patch v. White, 117 U. S. 210.) Mr. Bedfield, in his w'ork on Wills,. (volume 1, page 584,) lays down the rule, that where the description of the object or subject of a devise is erroneous and mistaken, extrinsic evidence is admitted to aid the construction, by showing to whom or to what the testator must have referred.

Latent ambiguities, as found by Chief Justice Tindal, in Miller v. Travers, 8 Bing. 244, and which might be explained by parol, fall into two classes: First, where the description of the devisee or subject matter of devise is clear on the face of the will, but on inquiry it is found that the words describe two or more persons or things with equal accuracy, so, unless it can be shown, by extrinsic evidence, to w'hich the testator intended his words to apply, the devise must fail for uncertainty; and second, where the description of the devise or of the devisee is correct in part and in part incorrect, as, where devisee’s name is correctly given, but his residence, or some other circumstance descriptive of the person or thing, is incorrect. And the modern state of the law upon this subject is well illustrated in the recent opinion of the Supreme Court of the United States, w'herein Mr. Justice Bradley, speaking for the court, said: “It is settled doctrine, that * * * such an ambiguity may arise upon a will, either when it names a person as the object of the gift, or a thing as the subject of it, and there are two persons or things that answer such name or description; or secondly, it may arise when the will contains a misdescription of the object or subject, as, where there is no such person or thing in existence, ,or, if in existence, the person is not the one intended, or the thing does not belong to the testator. The first kind of ambiguity, where there are two persons or things equally answering the description, may be removed by any evidence that will have that effect,—either circumstances, or declarations of the testator. (1 Jarman on Wills, 370; Hawkins on Wills, 9,10.) Where it consists of a misdescription, as before stated, if the misdescription can be struck out, and enough remain in the will to identify the person or thing, the court, will deal with it in that way; or, if it is an obvious mistake, will read it as if corrected. ” Patch v. White, 117 U. S. 210.

Tested by these principles, it is very clear, that in the devise under consideration there is a latent ambiguity. On the face of the will the subject matter of the devise is clear, but on inquiry it is -found that the descriptive words of the devis.e are, in part, false,—the parcel of land appearing to be devised did not > belong to the testator. If, then, we may strike out of the description of the premises appearing to be devised, so much as is false, and enough remain in the will, interpreted in the light of surrounding circumstances at the time the will was made, to identify the premises devised, this case will fall within the class of eases of which Patch v. White, supra, Allen v. Lyons, 2 Washb. C. C. 472, Winkley v. Kaime, 32 N. H. 268, Riggs v. Myers, 20 Mo. 299, Orphan Asylum v. Emmons, 3 Bradf. 144, Townsend v. Downer, 23 Vt. 225, Doe v. Roe, 1 Wend. 541, Mann v. Mann, 1 Johns. Ch. 234, Woods v. Moore, 4 Sandf. 579, and Emmert v. Hays, 89 Ill. 12, are examples as to the subject devised; and Gilmer v. Stone, supra, Vernon v. Henry, 3 Watts, 385, In re Gregory, 34 Beav. 600, and Button v. Tract Society, 23 Vt. 336, are examples as to the object of devise.

As indicative of the extent to which these principles have been carried by courts of the highest respectability, and as showing the current of authority, we select a few examples of their application. In Patch v. White, the testator said, “and touching my worldly estate, I give, devise and dispose of the same in the following manner. ” He devised specific lots to near relatives, and, among others, to his brother “lot numbered 6, in square 403.” He then gave to his son “the balance of my real estate, believed to be and consist of” certain named lots, but not mentioning lot 3, in square 406. And it was held that the testator intended to dispose of all his real estate, and thought he had done so; that in the devise to his brother he believed he was giving his brother one of the lots he owned; that evidence might properly be received to show that the testator did not, and never did, own lot 6, in square 403, but did own lot 3, in square 406, and that the evidence, in connection with the context of the will, sufficiently showed an •error in description, and that the lot really devised was lot 3, in square 406. Allen v. Lyon was a devise of a house and lot in Fourth street, Philadelphia, in the occupation of E. H. It appeared from the evidence that the testator did not own a house and lot in Fourth street, but did own a house and lot in Third street occupied by E. H., and it was held that the latter property passed under the will. Winkley v. Kaime was •a devise of thirty-six acres of lot 37, in the second division in Barnstead, being the same testator purchased from J. P., and the evidence showed there was no such lot in the second division in that town, but that testator owned a part of lot 97 in that division, purchased from J. P. Held, that the part of lot 97 owned by testator, passed under the will. In Orphan Asylum v. Emmons, the testatrix devised her shares of the Mechanic’s Bank stock. She had no bank stock except shares •of the City Bank. Held, that the word “Mechanic’s” must be rejected as inapplicable to any property owned by testatrix, and the rejection of the word left the bequest to operate upon any bank stock possessed by her, and so passed the City Bank •shares. And in Riggs v. Myers, the devise was of the southeast and south-west quarters of section 4, town 60, range 38, devisee of the south-west quarter to have access to the Big Spring. Parol evidence was heard showing the testator never •owned any land in section 4, town 60, range 38, but did own the south-east and south-west quarters of section 4, town 59, range 38, the south-west quarter of which was accessible to a big spring, and it was held that the latter quarter sections passed under the will.

And as to the identity of the object of the devise, the following may be taken as examples : Gilmer v. Stone.—Here the bequest was of the testator’s residuary estate, “to be equally divided between the Board of Foreign and the Board of Home Missions.” The evidence showed several religious denominations, including the Presbyterians, had boards of home and foreign missions; that the testator was an elder-in a Presbyterian church, and had, in his lifetime, always sent his contributions for home and foreign missions to the Presbyterian boards, and had contributed nothing to the mission boards of other denominations; and it was held, that this evidence, in connection with other bequests in the will made to the Presbyterian church, showed that the Presbyterian hoards of home and foreign missions were the ones, intended, and entitled to receive the bequest. And in Vernon v. Henry, a legacy was given to James Vernon Henry, described as a nephew of the testator, and son of the testator’s deceased sister, Elizabeth. The legacy was claimed by James-Vernon Henry, a <yn»zd-nephew of the testator and grandson. of Elizabeth, and also by Robert R. Henry, nephew of the-testator, and only living son (at date of will) of Elizabeth.. On extrinsic evidence, James was held entitled to the legacy.. See, also, 1 Jarman on Wills, 376, et seq.

It is to be noted that the principle of construction contended for as applied to wills, has been recognized by this court in the case of deeds. See Myers v. Ladd, 26 Ill. 415, and Swift v. Lee, 65 id. 336.

In every case calling for construction, the question of first, importance is, what was the testator’s intention. As was said in Finlay v. King’s Lessee, 3 Pet. 346 : “The intent of the-testator is the cardinal rule in the construction of will's, and if that intent can be clearly perceived, and is not contrary to-some positive rule of law, it must prevail, although in giving, effect to it some words should be rejected, or some restrained in their application, as materially to change the literal meaning of the particular sentence. ” But the embarrassment, in every case, arises in determining the just limitation upon. judicial inquiry as to intention. We have seen that in case of latent ambiguity, as in the present case, where it is shown that the description of the subject of the devise, as it appears on the face of the will, is false, in part, courts may look beyond .the words of the will,—may place themselves in the position occupied by the testator when he executed the will, and view the testator’s affairs as he viewed them, the better to determine the intention of the testator from the language of the will, after excluding what is shown to be false. This is all it is contended the court should do in this case, and to this extent, under the authorities, we may most certainly go. If, then, it shall appear, after rejecting the false words of the description, that sufficient remains to identify the lands intended to be devised, effect must be given to the devise accordingly.

It seems clear to us, from the will itself, that the testator intended to devise all his estate. Not only so, but it was his intention to devise “my real estate, ”—not real estate which he did not own. It seems very clear to us, also, that he intended his son, plaintiff in error, should be a prominent sharer in his bounty. It seems to us certain that testator intended to devise lands owned by him in town 18, north of range 11, west of the third principal meridian; also, lands lying in section 33, in the same town, and owned by him; also, lands lying in the north-east quarter of said section, and owned by him; and also twenty acres off the west half of his lands in said quarter section. The testator in fact possessed just such lands, and we can not doubt, in the light of these facts, that the parcel of land in the mind of the testator when he made his will, was the twenty acres off the west half of the northwest quarter of the north-east quarter of section 33, town 18, range 11, because this tract of forty acres was the only tract owned by him lying in the north-east quarter of said section, or, indeed, anywhere in the section. This conclusion is reached, not by adding to the terms of the will,—not by in-sorting what was by mistake left out of the will, and thereby reforming it,—but by rejecting, or refusing to give effect to, the words, “of the north-east quarter,” where they occur for the first time in the description. And this rejection is made because it is conclusively shown that to this extent the description of the devise is false in fact. The township and range is certain; the section therein is certain; the quarter-section within the section is certain; the only land possessed by testator within the quarter section is certain; and the part off the west side of the testator’s lands in the quarter section is also certain. Under such circumstances there can not be said to be any uncertainty as to the premises intended by the testator to be devised to his son. It was twenty acres off the west half of the north-west quarter of the north-east quarter of section 33. In thus giving effect to the devise, the false part of the description is rejected, and effect given to that part which is true; and this is done without, in the slightest degree, violating any positive rule of law or accepted canon of construction.

But it is insisted that the principle of Kurtz v. Hibner, 55 Ill. 514, is at variance with the views here expressed. An examination of the facts of that case will, we think, conclusively show that it is clearly distinguishable from the case now under consideration. In that case the frame of the bill and the offered evidence all proceeded upon the theory that a court of chancery might reform the will by correcting a mistake in description. The offer was to prove “that a mistake was made in drafting the will, by the insertion of the words section thirty-tivo, instead of section thirty-three; ” that devisee “had been in the actual possession of the tract for a number of years, and upon the repeated promise of the testator, in his lifetime, that he would give the same to” devisee, she had made lasting and valuable improvements. And as to the other tract, the offer was to prove that devisee, at the death ■of the testator, “was in the actual possession of the forty-acre tract as the tenant of the deceased, and that the draughtsman of the will, by mistake, inserted the word one, after the words section thirty, instead of two, so as to bequeath to James land in section 31 instead of section 32.” There was no pretence, in that case, that by rejecting so much of the description as was false, enough of the description remained so as that the lands devised could be identified. The moment that the numbers of the sections were rejected, the devise failed for uncertainty. The only means of identification furnished by the description or the will lay in the numbers of the sections, as was said in Bowen v. Allen, 113 Ill. 53. When they Avere rejected, nothing Avas left by which the lands intended to be devised could be located within any one of the thirty-six sections in the township, unless neAV numbers of sections could be inserted in the description. To have done that AA’ould haAre been to add to the will, to substitute words not used by the testator, in place of those used by him,—in effect, to make a will for the testator. Wills are required by statute to be in writing, and courts are without the power of substituting for the written words of the testator, other and different words not used by him. Then, to permit the substituting of words not used, in place of words used, Avould not only render this provision of law inoperative, but it would overthroAV the Statute of Frauds, and again open the door to all the evils that that Ieav was intended to prevent. Every consideration impels us to deny the power of courts to add to or reform a will on the ground of mistake. The Kurtz case goes upon this principle, and finds support in the folloAving American cases: Fitzpatrick v. Fitzpatrick, 36 Iowa, 674; Hill v. Fenton, 47 Ga. 455 ; Sherwood v. Sherwood, 45 Wis. 357.

It is also objected, that the decree gives to Eosina Decker the north-east quarter of the south-east quarter of section 28, etc., whereas, by the second clause of the will she is only given thirty acres of that forty-acre tract. There is certainly much force in the position of counsel for plaintiff in error in respect to this branch of the ease; but we agree with counsel for the defendants in error, that conceding the error to exist, it is not one of which plaintiff in error can take advantage, for it in nowise affects him.- It is a familiar doctrine, that one will not be heard to complain of an error that.does not injuriously affect himself.

It appears that after the execution of the will the testator . exchanged the tract of land given by the third clause of the will to Oliver Decker and Rosina Decker, for a couple of lots in Hall’s addition to the town of Virginia, which, by the decree, were given to Homer Decker, the residuary legatee. It is claimed by plaintiff in error, that by the transfer of the land the third clause of the will became void, by reason of there being nothing for it to operate upon, and -that the after acquired lots could not pass by the residuary clause of the will.^or, in other words, that the lots received in exchange for the land descended to the heirs as intestate estate. We discover nothing in the will itself to indicate that it was the intention of the testator that it was to be confined in its operation to such lands as the testator owned at the time of the execution of the will. In the absence of anything to indicate such an intention, wre perceive no reason why, under our statute, after acquired property will not pass, under the will, in the same manner as property owned by the. testator at the time, of its execution. The words of the statute are, that “testator shall have power to devise all the estate * * • * which she or he hath, or at the time of his or her death shall' have, in any lands, ” etc. (See Rev. Stat. chap. 148, sec. 1.) The language of the statute on this question is too plain to admit of serious discussion. See, in this connection, Willis v. Watson, 4 Scam. 64; Peters v. Spillman, 18 Ill. 870.

The circuit court erred in rejecting the offered evidence, and in not decreeing that plaintiff in error took, under the first clause of the will, twenty acres off the west half of the north-west quarter of the north-east quarter of section 33. The decree of the circuit court is therefore reversed to the extent indicated, and the cause is remanded, with directions to enter a decree in conformity with this opinion. In all other respects the decree of the circuit court is affirmed.

Decree reversed in part and in part affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Lester P. Wood V. John Clark et al.

      Filed at Ottawa June 17, 1887.

    1. Agency—extent of powers conferred—appointment of agent by insolvent debtor to settle Ms affairs. Power given by an insolvent or failing debtor to an agent, coupled with a transfer of the debtor’s property, to settle up the business of the latter during his absence, will include the power of the agent to pay certain of his principal’s debts in preference to others, by a sale of property for that purpose.
    2. An insolvent debtor placed his brother in possession of his goods and personal property, to close the same out as best he could, and' to make certain preferences of creditors or sureties, and left his place of business, and failing to make any arrangement to get out of his financial troubles, sent his brother this writing: “This is to certify that my brother, J. P. E., has my consent, and is authorized, to transact all my business while I am away, and I shall be responsible for the same:” Held, that the writing, viewed in the light of the circumstances, clearly authorized the brother named therein, to pay the principal’s debts by a sale of property, and, as incident to this, to discriminate between creditors.
    3. Contracts—parol evidence in aid of construction. It is competent to prove, by parol evidence, the situation of the parties, and of the subject matter of a written contract, at the time it is made and the circumstances under which it was made, for the purpose of understanding the language employed and the sense in which it is employed, though not for the purpose of contradicting or enlarging its terms.
    4. Same—two papers construed together. Where, at the time a bill of sale for personal property is executed and delivered, the vendee executes and delivers to the vendor, or his agent, a writing, showing a receipt of the property and what the vendee is to do in consideration of the transfer, the two writings will be construed together, as affording evidence of the transaction.

      5. Sale—whether absolute or contingent. A debtor, through an agent, made a bill of sale of his goods and chattels to two of his sureties, who gave back a writing, to the effect that if the title to the property should remain in them, and not be replevied, attached or levied upon by other creditors of the vendor, or the sale declared void in a judicial proceeding, then the sureties should pay off certain debts, including those for which they were bound: Held, that the sale to the sureties was an absolute sale, and not dependent upon a failure of the other creditors to attack the same for fraud, and a levy on the property did not render the sale void.
    6. Fraudulent conveyances—preference of creditor by failing debtor. A debtor may prefer one creditor to another, or secure a surety who is liable for him, in preference to paying other creditors; and if he does so, in good faith, without any design to conceal property from his creditors, the law will protect Ms act.
    7. Same—presumption and burden of proof. Where a sale of property is made professedly for the purpose of securing a surety or paying a creditor, it will be presumed to be fair and honest, and the burden will rest upon the party charging fraud, to prove it.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of DeKalb county; the Hon. C. W. Upton, Judge, presiding.
    Mr. John L. Pratt, Mr. A. J. Hopkins, Mr. N. J. Aldrich, and Mr. F. H. Thatcher, for the appellant:
    We maintain that the written authority to John F. Evans, by Philip H. Evans, did not contemplate any such transaction as the midnight sale of all of the latter’s personal property, and all of his available assets, to appellees. That authority simply empowered John F. Evans to transact the business of his brother in the ordinary way in which it had been previously conducted.
    The court instructed the jury, that fraud is never to be presumed, but always must be proven, etc. This is not the law. The fraud was apparent from the nature of the transaction, as shown by the appellees themselves, and it was not incumbent on appellant to prove it. The jury should be left to draw their own conclusions of what the evidence proves. City of Aurora v. Hillman, 90 Ill. 61.

      The court should not invade the province of the jury. They should be left free to find the facts, without any suggestions from the court as to what had or had not been proved. Farnam v. Childs, 66 Ill. 544.
    The court should not arrogate the power of the jury by assuming facts to be determined by the jury. Jameson v. Graham, 57 Ill. 94.
    For the court to assume the existence of a material disputed fact, invades the province of the jury. Reno v. Wilson, 49 Ill. 95; Yundt v. Hartrunft, 41 id. 9; Hassett v. Johnson, 48 id. 68; Small v. Brainard 44 id. 355.
    The court also erred in giving to the jury the fourth instruction for appellees, on the ground that the court assumes therein that the authority under which the said John F. Evans claimed to be acting, gave him the right to make such a disposition of the property. This, we contend, was not the case.
    Mr. Charles Wheaton, and Mr. Luther Lowell, for the appellees:
    As to what constitutes a general agency, and the powers of a general agent, see Dean v. Duncan, 17 Ill. 272; Dunlap’s Paley on Agency, (3d Am. ed.) 199; Oxford v. Peter, 28 Ill. 434; Railroad Co. v. Day, 20 id. 375 ; Insurance Co. v. Advance Co. 80 id. 549; Taylor v. Taylor, 20 id. 650.
    Parol evidence is proper to show the extent of the agent’s authority, even though there be written authority. Durham v. Gill, 48 Ill. 151; Insurance Co. v. Wilcox, 57 id. 180.
    The evidence does show that just such a sale as was made, was contemplated.
    The question of fraud is one for the jury. Hayes v. Bernard, 38 Ill. 297.
    Although a person be indebted to various creditors, he may give preference to a surety upon his obligation,—and that to an amount sufficient to save the surety harmless. Welsch v. Werschem, 92 Ill. 115.

      The law allows a debtor, in good faith, to prefer a particular creditor, and a sale to a creditor who is seeking to secure his debt in good faith, in preference to other creditors, of the •debtor’s property, is good, and will be sustained. Morris v. Tillson, 81 Ill. 607; Bowden v. Bowden, 75 id. 143.
    Such a contract is not fraudulent. The transfer is in the mature of a pledge to secure the payment of a debt. Kergin v. Dawson, 1 Grilm. 86; Belden v. Perkins, 78 Ill. 449.
    A pledgee may replevy from an attaching creditor. Currier v. Ford, 26 Ill. 488; Morris v. Preston, 93 id. 215.
    The law never presumes fraud. Wright v. Grover, 27 Ill. 426; Blow v. Gage, 44 id. 208.
   Mr. Justice Scholfield

delivered the opinion of the Court:

P. H. Evans was in the business of selling agricultural implements, wagons, sewing machines, lumber, etc., at Somonauk, DeKalb county. Finding that he was insolvent, he placed his business in the hands of his brother, ’John F. Evans, who was acting as book-keeper and salesman for him, saying to John F., that John Clark was surety for him on three notes payable to John McNamara, for $875 each, and that Stephen I). Wright was surety for him on a note payable to Anthony Harmon, for $1000; that he (P. H. Evans) was in a bad condition, financially, and that if he could not get out •of it he wanted to be sure and have John Clark and Stephen D. Wright secured; that he had a paper written out, and that if he did not make a satisfactory arrangement in Chicago, he would send John F. that paper, so that John F. could have authority to settle ujd the business of P. H., satisfactorily to his wishes. P. H., at the same time, further said to John F., that if the creditors came on him, (John F.) to crowd him for the money due them, to secure John Clark and Stephen D. Wright, and then settle with the rest of them as best he could. Immediately after this, on the 29th of January, 1885, P. H. Evans left his place of business and home at Somonauk, and has not since returned. On the 31st of January, 1885, John F. received a letter from P. H. Evans, enclosing to him the following:

“Somonauk, January 26, 1885.
“This is to certify that my brother, John F. Evans, has my consent and is authorized to transact all my business while I am away, and I shall be responsible for same.
P. H. Evans.”

John F. Evans did business for P. H. Evans, selling, collecting, etc., until February 4,1885, when John Clark, Stephen D. Wright, and the Somonauk Bank, applied to him to have the claims in which they were respectively interested, paid or secured. The result was, that, late in the night, a sale of property was made by John F. Evans, as agent of P. H. Evans, to them, as witnessed by a bill of sale of that date, describing' the property sold, and declaring that it was “to pay up, in full, three notes signed by John Clark, for and with said Evans, ” (i. e., P. H. Evans,) “and to be paid by said Clark, amounting to the sum of $2835. Also, a note signed by said S. D. Wright with said Evans, to A. Harmon, amounting to $1007, and also a note now owned by said Somonauk Bank, and signed by P. H. Evans, with John McNamara as surety, and which note is to be turned over to said P. H. Evans.” At the same time, Clark, Wright and the Somonauk Bank executed and delivered to John F. Evans the following:

“We hereby agree that if the title of the property this day sold us by P. H. Evans, per his agent, John Evans, shall .remain in us, and not be replevied or attached or levied upon by other creditors of P. H. Evans, or said sale to us declared void by a jury or the courts, that we will, as soon as all of said property shall have been sold by us, deliver to said P. H. Evans three notes, signed by John Clark, as surety, with said Evans,’ and now amounting to $2835, and also one note signed by S. D. Wright, as surety, with said Evans, and now amounting to $1007, and also one note, now in the Somonauk Bank, amounting to $355, and signed by P. H. Evans and John McNamara.
(Signed.)
John Clabk,
S. D. Weight,
John Clabic, Pres.,
for Somonauk Bank.
Somonauk, III., Feb. 4, 1885.”

Possession of the property was delivered immediately after the sale. A number of creditors of P. H. Evans subsequently levied upon the property described in the bill of sale, and. Clark, Wright and the Somonauk Bank brought replevin against Wood, the sheriff of De Kalb county. Issues were-made up, and the cause tried in the circuit court, resulting in a verdict and judgment in favor of Clark, Wright and theSomonauk Bank, and that judgment was affirmed, on appeal, in the Appellate Court for the Second District, and the present-appeal is from that judgment.

Appellant contended, in the circuit and Appellate courts, first, that John F. Evans had no power to make the sale of' the property as it is claimed by Clark, Wright and the Somonauk Bank to have been made; second, that by the terms of the agreement between the parties, the sale became a nullity upon the levy of the writs of attachment upon the property; third, that, if these objections are not well taken, then the-sale was fraudulent as against creditors.

Although numerous objections are urged to the rulings of the trial court, an examination of three questions will, in our opinion, be sufficient to show that the judgments below ought not to be disturbed.

First—It is competent to prove, by parol, the situation of the parties and of the subject matter of a written contract, at the time it is made and the circumstances under which it is made, for the purpose of understanding the language employed and the sense in which it is employed, though not for the purpose of contradicting or enlarging its terms. (Wilson v. Roots, 119 Ill. 379.) The instrument of the 26th of January, 1885, read in the light of the parol evidence showing the situation of the parties and the circumstances under which it was executed, is ample authority to do all that was done by John F. Evans. He was left in possession of an insolvent concern, to close it out as best he could, and to make certain preferences of creditors. Then comes the written authority to transact all the debtor’s business while he is absent. The terms are as comprehensive as could have been used, and the circumstances, instead of restricting them, show that they should be construed as broadly as expressed. Paying debts with money or property, is clearly within the scope of the business, and, as incident to this, is the power to discriminate between creditors.

Second—The receipt signed by Clark, Wright and the Bank ■of Somonauk, is to be read in connection with the sale bill of the same date,—the two being evidence of the transaction. So reading it, there can be no doubt the property was transferred absolutely, and, in payment therefor, the purchasers were to pay the debts therein described. But fearing that the title might fail, it was provided what should happen in that contingency. The words, “not be replevied or attached, or levied upon by other creditors, ” it is clear, from the circumstances and the other phraseology employed, were intended to mean, “the property shall not be taken from us, so as to lawfully deprive us of it, by replevin, attachment, or the levy ■of execution.” The language, “or said sale to us declared void by a jury or the courts, ” is clearly used as the alternative and equivalent of what precedes. The sale is not contingent upon the non-levy of a writ of replevin, or of attachment, or of execution,—it is absolute, and as a payment of this indebtedness in full, and it is therefore not reasonable that it should have been intended that any levy upon the property, not divesting title, should affect the transaction. In effect, it is in the nature of a warranty of title, in the event of a breach of which the buyer may bring his action for the return of the price. Benjamin on Sales, (1st Am. ed.) 679.

Third—A debtor may prefer one creditor to another, or secure a surety who is liable for him, in preference to paying other creditors; and if lie does so in good faith, without any design to conceal property from his creditors, the law will protect his act. (Welsch v. Werschem, 92 Ill. 115; Morris v. Tillson, 81 id. 607.) And where a sale of property is made professedly for the purpose of securing a surety or paying a creditor, it is presumed to be fair and honest, and the burden rests upon the party charging fraud, to prove it. (Bowden v. Bowden, 75 Ill. 143; Mey et al. v. Gulliman, Admx., 105 id. 285.) The rulings belowj in substance, accord with these views.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Scholeield

text:
    The Mutual Mill Insurance Company v. Clarence Gordon, use, etc.

      Filed at Mt. Vernon June 20, 1887.

    1. Móbtgagob and mobtgagbe—a joint indebtedness made several, by apportionment — consideration—Statute of Frauds. The partition of mortgaged premises between the mortgagors, who are tenants in common, is a good consideration for an agreement on the part of the mortgagee to divide the mortgage debt and apportion the same among the several mortgagors.
    2. So if a mortgagee, while the holder of the debt secured, enters into a parol agreement with the mortgagors, and they with him and each other, for the partition of the mortgaged lands, and that each one of the mortgagors shall pay only a certain part of the debt, the agreement will be valid, and each one of the former joint debtors will become an individual debtor, and liable only for the amount allotted to him to pay; and this will be the rule, in equity, even as against a bona fide assignee of the mortgage debt before maturity.

      3. In this case, A, B and 0, being tenants in common of several tracts of' land, upon all of which they had given a mortgage to secure their note for $37,000, payable in five years, by an arrangement with the mortgagee made a. partition of the lands and apportioned the mortgage debt between themselves, so that A was to pay $17,000 on the property assigned to him, and the other-two were each to pay $10,000, which was to rest on their lands in severalty, and the mortgagee agreed, by parol, to hold each one’s premises only for his part of the debt: Held, that the agreement of. the mortgagee was based on a valid consideration, and that the Statute of Frauds had no application to the agreement.
    4. Release of mortgage—by parol. A parol release or accord and satisfaction of notes secured by mortgage, as between the parties, will operate; to release or discharge the mortgage, which is but an incident to the debt.
    5. Insurance—effect of untrue answers to ambiguous questions. A parly seeking to insure mill machinery, and shafting, gearing, belting and tools in his mill, was required to answer this among other questions: “What is the present cash value of the property to be insured, exclusive of land and property not specified?” and he answered, “25,000,” which was the value of the entire mill property: Held, that the question being somewhat ambiguous, should be construed more favorably for the insured, and that he had reasonable ground for believing he was called upon to give the whole value of the mill property.
    6. Same—estoppel to dispute statement in policy under which party claims. Where a mortgagor procures a policy of insurance for the benefit of his mortgagee, the latter, by seeking to collect the amount of a loss under the same, will, be equitably estopped from disputing the truth of the representations bn which the policy was issued.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Randolph county; the Hon. Geo. W. Wall, Judge, presiding.
    Assumpsit was brought in the circuit court of Randolph county, upon a policy of insurance issued by the Mutual Mill Insurance Company to James Gordon, and by him assigned to his son, Clarence Gordon. The facts are:
    On January 25, 188é, James Gordon, D. P. Barker and R. H. Roseborough were joint owners of the Union Mills, at Sparta, Randolph county, and of certain other real estate in that county. Having failed in business before this time, and being desirous of effecting a settlement with. their creditors, they borrowed $37,000, for which they gave their joint and several promissory note, payable five years after its date, to the order of Borders & Boyle, with interest at the rate of six per cent per annum, from date, payable annually. To secure the payment of this note, Gordon, Barker and Roseborongh executed, under their hands and seals, a mortgage in due form, on the property covered by the policy in suit, and upon other joint property then owned by them. About the 18th of February, 1884, these mortgagors partitioned this joint property between themselves, and each took possession, severally, of the part set off to him, but allowed the $37,000 mortgage to remain upon all the property. They agreed, however, between themselves, orally, and with Borders & Boyle, that James Gordon, to whom the property covered by the policy was allotted, should only pay $17,000 of the mortgage debt, and this mill property should only be charged with that amount, and that Barker and Roseborough should pay the remaining $20,000. No part of this $37,000 has ever been paid.
    On October 1, 1884, James Gordon, owner of the property insured,—being the same covered by said mortgage,—wrote, signed and delivered to the Mutual Mill Insurance Company, an application for $2000 insurance on mill machinery, shafting, gearing and belting while in said mill, on the receipt of which the company issued to him, from its home office in Chicago, the policy in suit, for that sum, in accordance with said-application. The company knew nothing about the property to be insured, save the information contained in said application. The face of this policy states: “This insurance is based upon an application of the insured, filed in the office of this company, of even number and date with this policy, which application is made a part of this contract and a warranty on the part of the insured. ” And further, upon its face, reads: “If the insured shall make any false representation of the condition, situation or occupancy of the property hereby insured, or shall conceal any fact material to the risk, or in case of over-valuation or any misrepresentation whatever by the insured, either in the written application or otherwise, * * * in each and every case this policy shall become void. ” The application, among other things, contains the following questions and answers, all the answers being written by Mr. Gordon himself, to-wit: “Are you sole owner of the property to be insured (exclusive of land) ?—Yes. Age of building?—Twenty-seven years. Is it occupied by owner ?—■ Yes. What is the present cash value of the property to be insured, exclusive of land and property not specified?— §25,000. What is the value of land?—$1000. Is there any incumbrance ?—Yes. What is the amount and character of incumbrance, to whom payable, and when ?—§17,000; mortgage to Borders & Boyle; five years from February, 18S4. What part of principal or interest is past due and unpaid ?— None. Do you own the land in fee simple?—Yes.” Such loss as should be ascertained to be due James Gordon, if any, under the policy, was made payable to Borders & Boyle, as their interest might appear.
    On the 22d of November, 1884, James Gordon, having sold the property in question to his son, Clarence Gordon, transferred to him all his right, title and interest in the policy, etc., “subject to the terms and conditions therein mentioned and referred to.” The property insured was destroyed by fire on the 17th of May, 1885.
    On the trial, the court gave the following, among other instructions, at the instance of the plaintiff:
    • “The court instructs the jury, that if you believe, from the evidence, that James Gordon, R. H. Roseborough and D. P. Barker were the joint owners of certain land and real estate, among which was the mill property declared on in this suit; and if you further find, from the evidence, that Borders & Boyle owned and held a mortgage for the sum of $37,000 on all the said lands and real estate; and if you further find, from the evidence, that the said parties owning the property made and mutually agreed to make partition of said lands, and that the owners of said lands did make such partition, and did execute and deliver, each to the other, quitclaim deeds-to said lands, and that as a part of said arrangement said Borders & Boyle and the owners of the property did consent, to such partition, and did agree and consent that the mortgage debt due on all said lands should be divided and allotted, on and among the owners and debtors, and that by said arrangement the portion of the debt placed on the mill property in question was $17,000, and that only that sum should be collected from said mill property, and that under said partition said mill property was deeded to James Gordon upon that understanding, and that there was no other incumbrance upon said mill property at the time the application was made by James Gordon to defendant for insurance upon said mill property,—that he was justified in stating in the application that the incumbrance on the mill was only $17,000.”
    The defendant asked the court to instruct tfie jury as follows :
    “The court instructs the jury, that the only property covered by the policy in this ease is mill machinery and shafting, gearing, belting and tools, while in the mill building; that by the terms of the written application the insured was required to answer the following questions, among others, to-wit: ‘What is the present cash value of the property to be insured, exclusive of land and property not specified ?’ and James Gordon, the insured, answered, ‘$25,000.’ Q. ‘Is there any incumbrance ?’ and he answered ‘Yes.’ Q. ‘What is the amount- and character of the incumbrance, to whom payable, and when?’ and he answered, ‘$17,000; mortgaged to Borders &■ Boyle; five years from February, 1884.’ Now, the court instructs you, that by the terms of the policy these answers to said questions constituted express warranties,—first, that the propierty insured was of the value of $25,000; second, that. the incumbrance thereon did not exceed $17,000; and if either of these answers was untrue, the policy never became operative, and your verdict should be for the defendants.”
    The court, however, refused to give this instruction as asked, but modified it, and gave it as follows:
    “The court instructs the jury, that the only property covered by the policy in this case is mill machinery and shafting, gearing, belting and tools, while in the mill building; that if, by the terms of the written application, the insured was required to answer the following questions, among others, to-wit: ‘What is the present cash value of the property to be insured, exclusive of land and property not specified ?’ and James Gordon, the insured, answered, ‘25,000.’ Q. ‘Is there any incumbrance ?’ and he answered, ‘Yes.’ Q. ‘What is the amount and character of the incumbrance, to whom payable, and when?’ and he answered, ‘$17,000; mortgaged to Borders & Boyle; five years from February, 1884.’ Now, the court instructs you, that if, by the terms of the policy, these answers to said questions constituted express warranties,— first, that the property insured was of the value of $25,000; second, that the incumbrance thereon did not exceed $17,000; and if either of these answers was untrue, the policy never became operative, and your verdict should be for the defendant. ”
    Judgment was rendered in favor of the plaintiff, which was affirmed on appeal to the Appellate Court for the Fourth District, from which judgment of affirmance the present appeal is prosecuted.
    Messrs. Taylor & Pollard, for the appellant:
    That the policy and application constitute an express warranty that the incumbrance, at the date of the application, was only $17,000, see Thomas v. Insurance Co. 108 Ill. 92; Davenport v. Insurance Co. 6 Cush. 340; Byers v. Insurance Co. 35 Ohio St. 606; May on Insurance, secs. 156, 157.

      The substantial mis-statement of a fact which the insurer has made essential by a precise interrogatory, in the absence •of anything which limits or qualifies the obligation to answer •correctly, avoids the policy without an express stipulation to that effect; and it matters not whether such mis-statement was given by accident, mistake or design, the effect is the same,—it avoids the policy. Davenport v. Insurance Co. 6 Cush. 340; Clark v. Insurance Co. id. 347; Hayward v. Insurance Co. 10 Cush. 444; Wilber v. Insurance Co. id. 446; Draper v. Insurance Co. 2 Allen, 569; Town v. Insurance Co. 7 id. 51; Thomas v. Insurance Co. 108 Ill. 100.
    Whether the fact stated be material to the risk or not, is of no consequence, the contract being that the matter is as represented; and unless it is so, whether from fraud, mistake, negligence or other cause, the policy does not become operative. Such warranties are in the nature of conditions precedent, and if not strictly true, avoid the policy. Thomas v. Insurance Co. 108 Ill. 100; Insurance Co. v. Wright, 22 id. 474; Insurance Co. v. Fish, 71 id. 620; Barteau v. Insurance Co. 67 N. Y. 595; Witherell v. Insurance Co. 49 Maine, 200; Wall v. Insurance Co. 14 Barb. 385; Insurance Co. v. Cooper, 50 Pa. St. 339; Woolen Co. v. Insurance Co. 21 Conn. 19; Sheldon v. Insurance Co. 22 id. 235; Davenport v. Insurance Co. 6 Cush. 340; Hayward v. Insurance Co. 10 id. 444; Fails v. Insurance Co. 7 Allen, 50; Jacobs v. Insurance Co. id. 132; Towne v. Insurance Co. id. 51; Insurance Go. v. Winsloiv, 3 Graj', 431; 8 id. 38; Packard v. Insurance Go. 2 id. 334; Byers v. Insurance Go. 35 Ohio St. 614; Campbell v. Insurance Co. 98 Mass. 402; Hutchins v. Insurance Co. 11 Ohio St. 480.
    Failure by the insured to disclose the full amount of the incumbrance on the property insured, in answer to the question in the application touching such amount, is as much a breach of warranty as to deny that there is any. Wood on Insurance, 302; May on Insurance, (2d ed.) 290; Flanders on Insurance, 280; Byers v. Insurance Co. 35 Ohio St. 614; Jacobs
      v. Insurance Co. 7 Allen, 135; Brown v. Insurance Co. 11 Cush. 280.
    No consideration was paid for the partial release of the mortgage. An agreement to abandon a valid claim, unless there be a consideration shown, is a mere nudum pactwtn. Wilson v. Keeler, 9 Bradw. 347; McLean v. McBean, 74 Ill. 135; Renamaker v. Cordway, 54 id. 303.
    Borders & Boyle had the legal right to look to each individually for the entire debt. Now, to assent to an apportionment of the debt, and give up the joint liability, would be an assent to relinquish part of a valid claim, for which they got nothing in return. So, also, agreeing orally to look to each, only, for a portion of the entire debt, when they could look to each for all of it, amounts to the same thing. All such agreements are mere nudum pactum. Wilson v. Keeler, 9 Bradw. 347; McLean v. McBean, 74 Ill. 135; Renamaker v. Cordway, 54 id. 303 ; Weaver v. Ferris, 85 id. 361; Crawford v. Millspaugh, 13 Johns. 87; Loach v. Farnum, 90 Ill. 368.
    Messrs. Koerner & Horner, for the appellee:
    By the agreement with the mortgagees, the mortgage was apportioned to their satisfaction. There can be no question that they w'ere bound by it after the other parties had acted in accordance with it. After that, they were estopped to repudiate the agreement. Shepley v. Rangley, 1 W. & M. 217; Pickard v. Sears, 6 A. & E. 474; Chapman v. Hamilton, 19 Ala. 121; Quigley v. Riley, 50 Ill. 304.
    A paid mortgage, though not released of record, is not an incumbrance; neither is a fraudulent mortgage, or one invalid, for any reason whatever, an incumbrance. Merrill v. Insurance Co. 73 N. Y. 457; Hawk v. Insurance Co. 11 Wis. 191; Insurance Co. v. Jackson, 83 Ill. 308; May on Insurance, 192.
    Has the insured, then, acted in good faith ? Undoubtedly he has, although lawyers might differ as to whether the construction of the law on the question was the correct one. He answered as best he knew. The question he answered was one, besides, on which the company was advised. The $37,-000 mortgage was of record, and everybody is presumed to know the record as well as the law. Finding the apparent inconsistency of the answer with the record, the company was put on inquiry, and undoubtedly did inquire and was in-informed of the true condition of affairs. Insurance Co. v. McKee, 94 Ill. 400; Insurance Co. v. Chestnut, 50 id. 116; Insurance Co. v. Wright, 22 id. 474.
   Mr. Justice Scholeield

delivered the opinion of the Court:

The Appellate Court, by affirming the judgment, leave us only to inquire whether there was error of law in giving and ** refusing instructions, and in admitting evidence over appellant’s objection. In the view we take of the case, there are but two questions of law: First, was there material error in giving the instruction, at the instance of appellee, set out in the preceding statement ? Second, was there material error in permitting the witness Gordon to state the circumstances under which he answered that the value of the property was $25,000?

First—The objections urged against the validity of the agreement recited in the instruction are, first, that it was without consideration; and second, that it was not in writing.

1. The objection that it was without consideration assumes that there was simply an agreement to accept a less security for a greater, whereas the real agreement is, that parties who have hitherto been tenants in common of an entire property upon which, there is a mortgage, shall divide the property and the mortgage debt, and each enter upon, and thenceforth hold and use in severalty, the part set off to him by the division, and each pay, severally, the portion of the mortgage debt assigned to him. The agreement is an entire one, and the consideration of each part enters into and forms a part of the consideration of every part of the agreement. We think this was sufficient. 1 Chitty on Contracts, (11th Am. ed.) 28.

2. The Statute of Frauds can have no application to the case. A parol release, or accord and satisfaction of the notes, as between the parties, is plainly sufficient. 2 Chitty on Contracts, (11th Am. ed.) 114-7, and authorities cited in note k. The payment or discharge of the debt evidenced by the notes operates to release the mortgage, which is but an incident to the debt. (Ryan v. Dunlap et al. 17 Ill. 40; Pollock et al. v. Maison et al. 41 id. 516; McMillan et al. v. McCormick, 117 id. 79.) And if the notes should be assigned before due, although the assignment would carry the mortgage in equity, yet Since it is only in equity that the assignment can have that effect, the same equitable defences may be interposed against the promissory notes in the hands of the assignee, that can be interposed against them in the hands of the payee. (Olds v. Cummings, 31 Ill. 188; Shippen et al. v. Whittier, 117 id. 282; Petillon v. Noble et al. 73 id. 567.) And so, the contract being valid as between the mortgagor and mortgagee, the mortgage was for but $17,000, and the instruction was right. This insurance, moreover,' is for the benefit of these mortgagees, and the insurance policy having been issued upon the faith that that was the extent of their mortgage, the mortgagees would, upon familiar principles, be equitably estopped to contend, as against the insurance company, that it was more. And so, also, upon the doctrine of Olds v. Cummings and Shippen v. Whittier, supra, any subsequent assignee of the notes would, in this respect, but stand in their shoes, and be entitled to interpose the same defence to the assertion of rights in equity, under the mortgage.

Second—It was error to allow the witness to state why he valued the property at $25,000, but, in our opinion, it could do no harm. The questions put were somewhat ambiguous, and are, therefore, to be construed most favorably for the insured. We are of opinion, that in view of that ambiguity there was reasonable ground that he might have believed that he was required to give the whole value of the property, excluding the land,—not merely that of the mill machinery,— which he did, correctly. And this was the purport of the answer of the witness,—that he supposed the question alluded to the whole value of the property. It was the duty of the company, if they desired explicit and lucid answers in this respect, to frame their questions so that they could not mislead. The views expressed in the opinion of the Appellate Court (Mutual Mill Ins. Co. v. Gordon, 20 Bradw. 559,) upon this point, are somewhat more extended, and have our entire concurrence.

In conclusion, it is only necessary to add, that we concede the court erred in refusing to state to the jury whether the clause in the insurance policy in relation to the amount of the incumbrance wras a warranty; but since the first instruction, given at the instance of appellee, was correctly given, that error can have worked no harm to appellant. Had that instruction been correctly given as asked, the result must have been just as it is.

The judgment is affirmed

Judgment affirmed.


author: Mr. Justice Craig

text:
    Ellen Schneider et al. v. John L. Manning et al.

      Filed, at Ottawa June 17, 1887.

    1. Testamentary capacity— of the various tests and evidences in respect thereto. The fact that a man may become prejudiced against some of his children without sufficient cause, and may make unjust remarks against them not warranted by the facts, does not show that he has insane delusions, or is devoid of testamentary capacity.
    2. A person capable of transacting ordinary business, such as buying and, selling property, settling accounts, collecting and paying out money, or borrowing or loaning money, is also capable of making a valid will. If he is capable of acting rationally in the ordinary affairs of life, so that he may comprehend what disposition he may wish to make of his property, and be able to select the objects of his bounty, he is capable of making a will.
    3. An owner of property who has capacity to attend to ordinary business, has the right to dispose of it by deed or will, as he may choose; and it requires no greater mental capacity to make a valid will than to make a valid deed.
    4. A testator has a right to leave his property to his children or other relatives in unequal proportions, and such disposition is valid, whether it be reasonable or unreasonable, just or unjust; and the reasonableness or justice or propriety of his will are not questions for the jury to pass upon, except, perhaps, in so far as they may be considered as a circumstance in determining as to the testamentary capacity of the testator.
    5. On the contest of a will, where there is evidence before the jury that the testator was eccentric and peculiar, there is no error in instructing the jury that eccentricities or peculiarities will not necessarily render a man incapable of making a will.
    6. Evidence—opinion of witness as to sanity. After witnesses had testified in regard to a testator’s mind, and his capacity for transacting business, from their acquaintance and personal knowledge of him, they were asked, “Had he the mental capacity to dispose of his. property by will or deed?” Held, that the question should not have been allowed, but as the answer thereto added but little weight to the previous testimony of the witnesses, the error was not of such gravity as to require a reversal.
    7. On the trial of an issue as to the sanity of a testator, a medical expert having been called as a witness by the defendants, testified that he had heard all the evidence introduced by the contestants. He was then asked; “Having heard that evidence on the part of the contestants, state whether or not, in your opinion, from a medical standpoint, from that evidence, H. M. was of sound or unsound mind on” the date of the will: Held, that the question was admissible.
    Writ op Error to the Circuit Court of Lake county; the-Hon. C. W. Upton, Judge, presiding.
    • Mr. James S. Murray, for the plaintiffs in error:
    As to what constitutes an insane delusion, see Bible Society v. Price, 115 Ill. 632; Dow v. Clark, 3 Add. 90; Broughton v. Knight, 3 Law Rep. 64.
    In a ease of doubt as to the mental capacity of the testator, or as to the exercise of undue influence, the reasonableness-of the will and the dispositions made are proper subjects for the jury to consider. Betts v. Jackson, 6 Wend. 176; Clark v. Fisher, 1 Paige, 171; Dennison’s Appeal, 39 Conn. 405; Bitner v. Bitner, 65 Pa. St. 362; Kevill v. Kevill, 2 Bush, 614; Harrell v. Harrell, 1 Duv. 203; Lamb v. Lamb, 105 Ind. 457; Duffield v. Morris, 2 Harr. 381; Kimball v. Caddy, 117 Ill. 213.
    The fourth instruction was erroneous. It was to the effect that eccentricities or peculiarities will not necessarily render a man incapable of making a will, and that if the testator had sufficient mind and memory to understand the business he was engaged in, the jury should find in favor of the will, •even though he was eccentric.
    The court erred in allowing a witness to give his opinion as to whether the testator had the mental capacity to dispose of liis property by deed or will. DeWitt v. Barley, 17 N. Y. 340; Griffin v. Ing, 3 Dev. 358; Gibson v. Gibson, 9 Yerg. 322; May v. Bradlee, 127 Mass. 419; White v. Bailey, 10 Mich. 155; Kempsey v. McGinness, 21 id. 123; Farrell v. Brennan, 32 Me. 328; MClintock v. Cord, id. 411; Fairchild v. Bascom, 35 Vt. 398.
    The court erred in allowing the medical expert to answer •certain questions. Regina v. Frances, 4 Cox C. C. 57; Sills v. Brown, 38 Eng. C. L. 353; 67 Hansard, 614; Railroad Co. v. Maffitt, 75 Ill. 524; Guiterman v. Steamship Co. 83 N. Y. 358; Buxton v. Potter's Works, 121 Mass. 446; Carpenter v. Transportation Co. 71 N. Y. 575; Reynolds v. Robinson, 64 id. 589; Phillips v. Starr, 26 Iowa, 349; Rust v. Magee, 36 Ind. 71; Tingley v. Cowgill, 48 Mo. 292; State v. Felter, 25 Iowa, 67; McMeechem v. McMeechem, 17 W.Va. 683; Spear v. Richardson, 37 N. H. 34; Teft v. Wilcox;, 6 Kan. 58; Negro “Jerry” v. Townsend, 9 Md. 145; Page v. State, 61 Ala. 17; Bishop v. Spining, 38 Ind. 144.

      Messrs. Whitney & Upton, and Mr. Egbert Heryey, for the defendants in error:
    The question whether the will is just or unjust, reasonable or unreasonable, can not be urged as evidence of unsound mind. Rutherford v. Morris, 77 Ill. 397; Carpenter v. Calvert, 83 id. 62; Freeman v. Easly, 117 id. 317.
    If the mind and memory are sufficiently sound to enable him to know and understand the business in which he is engaged at the time of executing his will, then he is of sound mind and memory, within the meaning of the law. Meeker v. Meeker, 75 Ill. 260; Yoe v. McCord, 74 id. 33; Trisk v. Newell, 62 id. 196 ; Brown v. Riggin, 94 id. 560; Carpenter v. Calvert, 83 id. 62; Freeman v. Easly, supra.

    A non-professional witness may give his opinion upon the state of mind of a party, as the result of his own observations, accompanied with a statement of the facts which he has observed. Dunham's Appeal, 27 Conn. 193; Hardy v. Merrill, 56 N. H. 227; Pittard v. Foster, 12 Bradw. 132; Clary v. Clary, 3 Ired. 78; Wheeler v. Anderson, 3 Hagg. Eccl. 374; Harrison v. Rowan, 3 Washb. C. C. 585; McClintock v. Card, 32 Mo. 419 ; Wagon v. Small, 11 S. & E. 141; Brooke v. Townsend, 7 Gill, 10; Wilkinson v. Pearson, 23 Pa. 117; Dorsey v. Warfield, 7 Md. 65; Beaubien v. Cicotte, 12 Mich. 460; Negro “Jerry” v. Townsend, 9 Md. 145 ; People v. Aleim, 1 Edm. 13; Fenwick v. Bell, 1 C. & R. 312; 8 Abbott’s Digest, 265, sec. 61; Weir v. Fitzgerald, 2 Bradf. 42.
    As to the testimony of medical experts, see 1 Greenleaf on Evidence, sec. 440; Rex v. Wright, Russ. & Ry. 156; Paige v. Haggard, 5 Hill, 603; Gilman v. Stafford, 50 Vt. 723; State v. Lautenschlager, 22 Minn. 514; Getchell v. Hill, 21 id. 464; Wright v. Hardy, 22 Wis. 348; Dickinson v. Fitchburg, 13 Gray, 546; Woodbury v. Obear, 7 id. 467; Regina v. McNaughton, 47 Eng. C. L. 29; Rex v. Serle, 1 M. & R. 75; Webb v. State, 9 Texas App. 490.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Ellen Schneider and. Edward H. McGlennon, to contest the will of Hugh McGlennou, deceased. The will was executed on the 6th day of September, 1879. McGlennon died on the 1st day of January, 1885, and on the 20th day of June, 1885, the will was admitted to probate in the county court of Lake county. The-deceased left an estate of the probable value of $50,000, consisting mainly of real estate situated in Lake county and in the city of Chicago. He owed but few debts. The deceased left as his only surviving heirs, a widow, Ann McGlennon, and three children, Ellen Schneider, Edward H. McGlennon and Sarah E. Hagan. By the terms of the will, the testator, after directing the erection of a family vault and the payment of his debts, devised to his wife all of his personal property, and to his daughter Sarah F. Hagan, the remainder of his-estate, except the sum of $100, which he devised to his-daughter Ellen Schneider, and a like sum to his son, Edward H. McGlennon. On the 31st day of July, after the will was probated, this bill was filed, in which it is alleged that-the said Hugh McGlennon, at the time of executing the will, was not of sound mind and memory, but on the contrary thereof, for a long time prior to and at the time of the said execution, was in a state of partial insanity, and affected with and subject to insane delusions concerning his wife and children. The bill contained other allegations, but it will not-be necessary to refer to them here. The widow, the executor and Sarah E. Hagan were made defendants to the bill, and they put in an answer, in which they denied all the material allegations of the bill as to unsoundness of mind and partial insanity of the testator. An issue was formed, as is provided by the statute, which was tried before a jury, and a verdict was rendered in favor of the validity of the will, upon which the court rendered a judgment. To reverse the judgment of the circuit court the complainants sued out this writ of error.

Many witnesses were called, and testified on the trial as to the soundness and unsoundness of the testator’s mind at the time the will was executed; hut we have not the time, nor would it serve any useful purpose, to go over the evidence of each witness in detail. We have, however, examined all the evidence introduced on the trial, and while it may he conceded that the testator was eccentric, and entertained strange notions upon some subjects, yet the great preponderance of the evidence showed that he was a man of vigorous mind; that he had capacity to transact all ordinary business, and was fully competent to make a will. It was not claimed by the contestants that the testator was insane, as that term is ordinarily understood, but the claim was, that at the time the will was executed Hugh McGlennon was laboring under an insane delusion respecting his children, Ellen Schneider and Edward H. McGlennon, and in consequence of such insane delusion he was incompetent to make a will.

Certain declarations made by the testator after 1869, to the effect that the son had threatened to kill the whole family; that Schneider had tried to induce testator’s wife to obtain a divorce and secure large alimony; that he would break any will the testator might make that did not suit him; that there was a plot between Schneider, his wife and testator’s son, to Trill him, and other declarations of a similar character, are relied upon to establish an insane delusion. Whether the testator had sufficient cause for making all or any of the declarations attributed to him, we shall not stop to inquire. There was some evidence introduced tending to prove that he had ground for making the charges, or at least some of them, that were made against the members of his family; but, independent of this, the proponents of the will called over thirty witnesses, some of them prominent business men of the city of Chicago, who had known the testator for many years, business men in the city of Lake Forrest, near where the testator lived for several years, and prominent men in Waukegan, where the testator had transacted business. These witnesses, with great unanimity, state that they had observed no change in the manner of the testator; that they noticed nothing in his conduct or conversation that indicated that he was of unsound mind; that they regarded him perfectly competent to transact ordinary business, and that he was mentally competent to dispose of his property by deed or will.

There may be, and doubtless are, eases where a person may be able to transact some business, and yet be incapable of making a will, on account of an insane delusion, "which has destroyed the mind on a subject relating to that particular act. Shelford on Lunatics, p. 26, says: “Insane delusion consists in the belief of facts which no rational person would have believed. This delusion may sometimes exist on one or two particular subjects, though generally there are other concomitant circumstances, such as eccentricity, irritability, violence, suspicion, exaggeration, inconsistency, and other marks and symptoms which may tend to confirm the existence of delusion and to establish its insane character. The absence or presence of delusion, so understood, forms the true and only test or criterion of absent or present insanity. In short, delusion, in that sense of it, and insanity, seem to be almost, if not altogether, convertible terms.”

In view of the law thus declared on the question under consideration, a bare reference to the evidence of the witnesses introduced in support of the will, is enough to show clearly that, the testator was not laboring under an insane delusion, as that term is described by the author. The witnesses had known the testator for many years. They frequently met him and talked with him in regard to business and the various affairs of life, and in their conversation and constant intercourse with him no trace of a deranged mind on any subject is detected. Whatever doubt, therefore, may have been raised in the minds of the jury by the evidence of the contestants of the will, in regard to the mental capacity of the testator to make a will, was overcome and removed by this evidence. A man may become prejudiced against some of his children, and that, too, without proper foundation; and because he may make unjust remarks against them,— remarks not warranted by the facts,—it does not follow that he has insane delusions, or that he is devoid of testamentary capacity. If such was the rule, but few wills would be able to stand the test where an unequal distribution of property has been made by a testator among children. A man has the right to dispose of his property by will in such manner as he may desire, and the fact that he may give more to one child than another, does not affect the validity of a will, or prove that the testator is incompetent to make a will.

It is also claimed that instruction No. 5, given in behalf of defendants, is erroneous. It is as follows:

“The court instructs the jury, that insanity or unsoundness of mind, within the meaning of the law in this case, is a disease of the brain, affecting the mind to such an extent as to destroy a man’s capacity to attend to his ordinary business, or to know and understand the business he was engaged in when making a will. And unless the jury believe, from the evidence, that Hugh McGflennon’s brain was diseased to such an extent that he did not have mind and memory sufficient to enable him to transact his ordinary business, such as renting his real estate, settling accounts, buying and selling property, and to know and understand the business he was engaged in at the time he made the will in dispute, you should find that said will is the will of said Hugh McGlennon. ”

Where a bill has been filed to impeach a will, on the ground that the testator was of unsound mind at the time the will was executed, the doctrine announced in the instruction has been approved in a number of cases decided by this court. In Meeker v. Meeker, 75 Ill. 262, it is said: “It is a rule of law, that a person who is capable of transacting ordinary business is also capable of making a valid will. It is not required that he shall possess a higher capacity for that than for the transaction of the ordinary affairs of business. A man capable of buying and selling property, settling accounts, collecting and paying out money, or borrowing or loaning money, must usually be regarded as capable of making a valid disposition of his property by will. ” The same doctrine was announced in Yoe v. McCord, 74 Ill. 34, Brown v. Riggin, 94 id. 564, Carpenter v. Calvert, 83 id. 62, Turk v. Newell, 62 id. 196, and Freeman v. Easley, 117 id. 317. In the last case cited, after referring to Meeker v. Meeker with approval, it is said: “A test usually recognized is, the party must be capable of acting rationally in the ordinary affairs of life, so that he may comprehend what disposition he may wish to make of his property, and be able to select the subjects of his bounty. Nothing more is required, and so the authorities in this State .uniformly hold. ” The rule announced by this court is in full accord with the most approved text writers on the subject. See 1 Redfield on Wills, 123, 124.

But it is said that the principal issue made by the contestants was, that the testator, at the time he executed the will, was laboring under insane delusions concerning the natural objects of his boulity, and, as applied to that issue, the instruction does not correctly state the law. In support of this position, we are referred to American Bible Society v. Price, 115 Ill. 631. Had there been no other instructions in any manner limiting the rule announced in this instruction, in regard to insane delusions, it may be that instruction No. 5 might have been misleading. But such was not the ease. In the sixth instruction the jury were told, that if the testator had an insane delusion on the subject of his family, yet if they find, from the evidence, that at the time he made the will he had sufficient mind and memory to understand ordinary business, and knew and understood the business he was engaged in when he made the will, they should find the will to be valid. Again, in contestants’ instructions 2 and 3, the jury were so fully and clearly instructed in regard to insane delusions, that they could not have been misled by the instruction complained of.

No. 3 is also claimed to be erroneous. The instruction, in substance, declares that the owner of property who has capacity to attend to ordinary business, has the right to dispose of it by deed or will, as he may choose, and that it requires no greater mental capacity to make a valid will than to make a valid deed; that an owner of property has a right to leave his property to his children, or other relatives, in unequal proportions, and such disposition is valid, whether it be reasonable or unreasonable, just or unjust; and the reasonableness or justice or propriety of the will are not questions for the jury to pass upon. The law is well settled that any person competent to make a will may dispose of his property in such manner, not inconsistent with the law of the land, as his judgment may dictate. He is under no legal obligation to divide it equally among his children, but may cut off one or all, and devise to a stranger; and, as a general rule, the justice or propriety of the will is not a question for the jury to pass upon. This, as we understand it, is the substance of the charge complained of. There are authorities which hold that apparent inequality or unreasonableness in a testamentary disposition of property may be considered as a circumstance on the question of testamentary capacity,—for example, Lamb v. Lamb, 105 Ind. 457; Denison’s Appeal, 39 Conn. 405; Bilner v. Bilner, 65 Pa. St. 362; Kevill v. Kevill, 3 Bush, 614; Kimball v. Cuddy, 117 Ill. 217. But we do not understand that the instruction conflicts with this rule. Had the jury been told that injustice or inequality of disposition was not a circumstance to be considered, a different question might arise; but such was not the instruction, as we understand it.

The fourth instruction is objected to. The substance of this charge is, that eccentricities or peculiarities will not necessarily render a man incapable of making a will. There was evidence before the jury that the testator was eccentric and peculiar, and if such traits of character did not disqualify, we see no good reason why the jury might not be so instructed. An eccentric man or a peculiar man is not disqualified from selling or disposing of his property by devise. If such was the case, many people might be deprived of that right, as but few men can be found who are not in some respects peculiar.

After several of the witnesses had testified in regard to the condition of the testator’s mind, his capacity for transacting business, from their acquaintance and personal knowledge of him, they were then asked the following question: “Had he the mental capacity to dispose of his property by will or deed?” The question was objected to, but the objection was overruled, and the witness allowed to answer. The decision of the court on the question is relied upon as error. The authorities are not uniform on this question, but we think the weight of authority is against the ruling of the court. Gibson v. Gibson, 9 Yerg. (Tenn.) 332; White v. Baily, 10 Mich. 155; Kempry v. McGinnis, 21 id. 123; Farrel v. Brennan, 32 Mo. 328; Fairchild v. Bascom, 35 Vt. 398. The witness had the right to state any fact he knew in relation to the capacity of the testator to transact business, and all he knew in regard to the vigor or strength of his mental powers. But whether he had the mental capacity to dispose of his property by will or deed, was a question for the jury to determine from the facts proven before them. But while the court erred in allowing the question to be answered, it was not an error of sufficient magnitude to reverse the judgment. The witness had stated all the facts upon which he based his opinion, to the jury, and his mere opinion could carry with it no additional weight. We do not think, therefore, that complainants were in the least injured by the evidence.

Dr. Hays, a medical expert, having been called as a witness by the defendants, testified that he had heard all the evidence introduced by the contestants. The witness was then asked the following question: “Having heard that evidence on the part of the contestants, state whether or not, in your opinion, from a medical standpoint, from that evidence, Hugh McGlennon was of sound or unsound mind on September 6, 1879.” The question was objected to, the objection overruled, and the complainants excepted. We think the evidence was admissible. Greenleaf on Evidence, (vol. 1, sec. 440,) after stating that the opinions of witness are, in general, not evidence, says: “On questions of science, skill or trade, or others of the like kind, persons of skill, sometimes called experts, may not only testify to facts, but are permitted to give their opinions in evidence. Thus, the opinions of medical men are constantly admitted as to the cause of disease or of death, or the consequence of wounds, and as to the sane or insane state of a person’s mind, as collected from a number of circumstances, and as to other subjects of professional skill; and such opinions are admissible in evidence, though the witness founds them, not on his own personal observation, but on the case itself, as proved by other witnesses on the trial.” Gilman v. Town of Stafford, 50 Vt. 723; Webb v. State, 9 Texas Ct. of App. 490; Woodbury v. Obear, 7 Gray, 467.

A hypothetical question was also asked the witness, which is claimed to be erroneous. But without entering upon a discussion of the question, we think it complied substantially with the rules of evidence which govern the subject. Indeed, after a caieful examination of the entire record, we find m substantial enor in it, and the decree will be affirmed.

Decree affirmed.