author: Mr. Presiding Justice Windes

text:
    Joseph Pfirshing v. Augusta Peterson.
    1. Sureties — Liability Not to Be Extended by Implication. — A surety has a right to stand upon the strict terms of his obligation when such terms are ascertained, and his liability is not to be extended by implication beyond the terms of his contract.
    2. Same — What Will Operate as a Release. — Where a creditor receives securities in pledge for a debt, such securities will be regarded as an indemnity not only to the creditor but to a suret}r for the original debtor, and the surety has the right to exact of such creditor proper care and diligence in the management of the security, and any waste or misapplication of it will no doubt operate as a release of the security to the amount of the loss actually sustained.
    8. Same — When a Sxirety on an Appeal Bond is Released. —A person who obtained an injunction in the Circuit Court to restrain a party from foreclosing a chattel mortgage, took an appeal from an order of the court modifying such injunction, to the Appellate, giving an appeal bond in the penal sum of $300, in which latter court the appeal was dismissed and the injunction dissolved, after which there was nothing to prevent the party from proceeding with the foreclosure of the chattel mortgage, but she failed and neglected to take possession of the mortgaged property as she might have done. It was held that by reason of her neglect she lost her lien on the property, and all the benefit of her mortgage, and as she had suffered nothing under the condition of the appeal bond requiring the payment of damages, the surety on such bond was released.
    Debt, on an appeal bond. Error to the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed, and judgment in this court.
    Opinion filed November 7, 1901.
    Statement by the Court. — Defendant in error, Peterson, brought debt against plaintiff in error, Pfirshing, on an appeal bond to this court. A trial before the court without a jury, upon certain stipulated facts set forth in the declaration, and in the fourth and fifth pleas of Pfirshing, resulted in a judgment in debt of $3,000, and damages $2,948.57, against plaintiff in error, which is sought to be reviewed.
    It appears from the stipulated facts, in substance, that on October 3, 1892, said Peterson obtained a decree against one Ebberson in' a' suit brought in the Circuit Court by Ebberson against her to prevent the foreclosing of a chattel mortgage on certain personal property, in which suit a temporary injunction was issued restraining said Peterson from foreclosing said mortgage. This decree was to the effect that the debt secured by said mortgage, which was $2,000, and interest from February 24, 1892, was due and unpaid, and that the injunction theretofore issued in the cause “ be and the same is hereby modified as follows : that said defendant may proceed under the power and for the purposes contained and set forth in said mortgage to sell said mortgaged goods and chattels at public auction for cash, after giving ten days’ notice, in writing, to complainant, of the time and place of such sale, and posting up notices of such sale at least ten days before the day of such sale, at three public places in the vicinity of such sale, which notices shall contain a description of the property to be sold.” Also that Ebberson prayed an appeal from the decree, which was granted upon his giving bond in the penalty of $3,000, pursuant to which the bond sued on in this case was given. This bond, which was executed by Pfirshing as surety, contains the following condition, to wit:
    “ How, therefore, if said Ebberson shall prosecute his said appeal with effect, ‘ and, moreover, pay the amount of the decree, costs and interest,’ and pay all damages in case said decree shall be affirmed, and pay all damages accruing to said Peterson through loss or deterioration of said goods and chattels, and through the postponement of the sale of said goods and chattels, by reason of said appeal, then the above obligation is to be void, otherwise to remain in full force and virtue.”
    Ebberson’s appeal was dismissed by this court March 20, 1893. Ho other order was entered by the court that rendered said decree, by which the injunction therein issued against Peterson was continued in force after said appeal. After the entry of said decree there was nothing which prevented Peterson from taking possession of and selling the mortgaged property to satisfy her debt, under the powers and provisions of the chattel mortgage, but she failed and neglected so to do until February 24, 1893, when the said mortgage expired and was due and payable; and she might also have foreclosed the same, because of its maturity. A second mortgage in favor of one J. D. Tobey, made by said Ebberson, dated September 13,1892, to secure the latter’s note of $3,000, was, pursuant to its terms, on April 1,1893, foreclosed, and said mortgaged property sold, and the proceeds thereof applied to the satisfaction of the second mortgage, whereby and because the said Peterson failed and neglected to take possession of said mortgaged property, as she might have done at any time from the rendition of said decree up to April 1, 1893, she lost her lien on the property and all the benefit of her chattel mortgage. When said Peterson’s debt and mortgage matured, and when said appeal was dismissed, all of the mortgaged property was then in existence, situated at the same place as when her said mortgage was executed, and was of the same value as when the appeal bond sued on was executed. Ebberson has not paid any part of the debt due by him to Peterson, nor any costs, interest or damages sustained by her through the loss of said mortgaged property.
    James E. Purnell, attorney for plaintiff in error.
    Deneen & Hamill, attorneys for defendant in error.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

It will be noted from the foregoing statement of facts that the decree appealed from by Ebberson, by its terms permitted Peterson to sell the mortgaged property under the power contained in the chattel mortgage, and for the purposes in the mortgage specified, upon giving ten days’ written notice prior to the day of sale. This decree effectually dissolved the injunction theretofore issued in the cause, restraining such sale, and inasmuch as no order appears to have been made by the Circuit Court that continued the injunction in force after said appeal, there was nothing to have prevented her from selling the mortgaged property at any time after the entry of the decree up to the day, April 1, 1893, when it was taken on the second mortgage. Rev. Stat. (Hurd), Chap. 69, Sec. 21.

It will also be observed that the condition of the bond signed by Pfirshing is to pay the amount of the decree appealed from, costs and interest, and all damages accruing to “ Peterson through loss or deterioration of said goods and chattels and through the postponement of the sale of said goods and chattels by reason of said appeal.” As we have seen, the goods and chattels were intact and of the same value as when the bond was given up to April 1,1893, and might have been sold and the proceeds appropriated by Peterson. Therefore she suffered no damage under the condition of the bond requiring the payment of damages.

The undertaking to pay the amount of the decree can not avail defendant in error, because there was no decree in her favor for any amount of money, nor any decree except one which had the practical effect of dissolving the injunction and leaving her free to sell the mortgaged property and to apply the proceeds toward the payment of Ebberson’s debt.

The only remaining provision of the bond under which there is any proof to sustain any judgment in favor of the plaintiff is as to costs and interest. The only evidence of costs incurred is of $10 in this court, which, with interest, she is entitled to recover of the plaintiff.

It is claimed by defendant in error, and a number of authorities are cited in support of the contention, that she was not bound to proceed to the foreclosure of her mortgage; that mere neglect on her partin that regard, without the doing of an affirmative act, would not have the effect to discharge the surety, Pfirshing. Hone of the cases cited seem applicable here, for the reason that they are cases where the creditor held no security for his debt. Moreover, they are not applicable for the reason that under the condition of the bond here in suit the real question to be considered is, what damage has Peterson suffered and what damage has she shown? She has lost her lien upon the mortgaged property, but what its value is does not appear, and the only injury she has suffered so far as the amount is shown, is $10 Appellate Court costs and interest thereon. It is well settled by the authorities “ that the liability of the surety is not to be extended by implication beyond the terms of his contract.” 1st Brandt on Suretyship, Sec. 93; Shreffler v. Nadelhoffer, 133 Ill. 551.

In the Shreffler case, supra, the court says: “ It is a rule universally recognized by the courts that a surety has a right to stand upon the strict terms of his obligation when such terms are ascertained,” and after quoting the rule as above stated, cites numerous decisions in this State which sustain it. This being the settled law, we are of opinion that the condition of the bond requiring the surety to pay the amount of the decree is wholly nugatory, inasmuch as there is no decree of any amount which he could pay.

While it is unnecessary, under the evidence in this case,t to hold, that the surety is discharged by reason of the neglect of Peterson to take possession of the mortgaged property and realize upon it by foreclosure and sale thereof, it would seem not improper to say that a great injustice and wrong would be done to the surety to hold that he is liable for any part of the damages which Peterson claims to have suffered in the loss of the mortgaged property which resulted from her own neglect.

In Hall v. Hoxsey, 84 Ill. 616, it was said that where a creditor received securities in pledge for a debt, such securities would be regarded as an indemnity not only to the creditor, but to a surety for the original debtor, and the surety had the “ right to exact of the creditor proper care and diligence in the management of such collateral security, and any waste or misapplication of the collaterals would, no doubt, operate as a release of the surety to the amount of loss actually sustained. This is the doctrine of Rogers v. School Trustees, 46 Ill. 428, and Phares v. Barbour, 49 Ill. 370.” See, also, 2d Brandt on Suretyship, Sec. 445; Teaff v. Ross, 1 Ohio St. 469-75; Steele v. Healing, 24 Ala. 285-90; Henderson v. Huey, 45 Ala. 275; Succession of Pratt, 16 La. An. 357; Toomer v. Dickerson, 37 Ga. 428; Miller v. Berkey, 27 Pa. St. 317.

There are authorities to the contrary, viz.: Pickens v. Finney, 20 Miss. 468; Vance v. English, 78 Ind. 80, and cases cited; Philbrooks v. McEwen, 29 Ind. 347-9; and others might be cited.

We, however, think the rule as stated in the Hall case is supported by the better reason, and we regard it as decisive of the question.

We can perceive no more effective waste or relinquishment of security for a debt than was accomplished by the failure to act of Peterson in this case, and are of opinion that, in principle, this case' is clearly within the decision in the Hall case, supra. It is, however, unnecessary to put our decision on that ground, by reason of the failure of defendant in error to prove that she has suffered any damage beyond what has been stated.

The judgment is therefore reversed and judgment will be entered for defendant in error in this court for $10 and interest at five per cent per annum from March 20, 1893, making a total of $14.30. Defendant in error will pay the costs of this court. Reversed, and judgment entered in this court.


source: Caselaw Access Project

author: Mr. Justice Sears

license: Public Domain

text:
    E. R. McIntyer v. Maurice M. Houseman.
    1. Partnerships — One Partner May Obligate Himself Personally in a Matter of the Firm's Business. — One member of a copartnership may obligate himself, personally, if he chooses to do so, in a matter of the firm’s business, and this although the whole benefit of the transaction is enjoyed by the firm.
    Assumpsit, for services. Error to the Circuit Court of Cook County; the Hon. Elbridge Hanect, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed and remanded.
    Opinion filed November 7,1901.
    Statement. — Defendant in error, while a member of the law firm of Cowen & Houseman, composed of defendant in error and Israel Cowen, Esq., engaged the plaintiff in error, who is a practicing physician, to examine a client of the firm of Cowen & Houseman for the purpose of enabling plaintiff in error to testify as an expert to certain physical injuries of the client in a prospective law suit. Plaintiff in error sued defendant in error for such services and recovered before a justice of the peace. Upon appeal trial was had in the Circuit Court, which trial resulted in a peremptory instruction by the court, directing the jury to return a verdict for the defendant. From judgment upon a verdict so rendered this appeal is prosecuted.
    Ho evidence was presented on behalf of the defendant. The testimony of plaintiff in error established the engagement and the services rendered.' The testimony of another witness established that defendant in error, in a former trial, wherein it was sought to charge Mr. Cowen with liability in the same matter, testified that he alone was liable for the services rendered by the plaintiff in error; that he had employed plaintiff in error, and that his copartner, Cowen, had nothing to do with the matter.
    James Harvey Hooper, attorney for plaintiff in error.
    Maurice M. Houseman, attorney for defendant in error.
   Mr. Justice Sears

delivered the opinion of the court.

The only question presented upon this appeal is as to the propriety of the instruction peremptorily directing a verdict for defendant in error.

The instruction was evidently given upon the theory that the liability for the services rendered by plaintiff in error was a copartnership liability resting upon defendant in error and Mr. Cowen, and that the suit should have been brought against both.

But there was evidence, not only tending to establish, but establishing, that the engagement of plaintiff in error was the personal undertaking of defendant in error.

The positive admission of the defendant in error, made while testifying under oath, was, when taken in connection with the testimony of the plaintiff in error, and while uncontradicted, quite sufficient to warrant a verdict for the plaintiff in error.

One member of a copartnership may obligate himself personally, if he chooses so to do, in a matter of the firm’s business. Sylvester v. Smith, 9 Mass. 119.

And this, although the whole benefit of the transaction is enjoyed by the firm. Watt v. Kirby, 15 Ill. 200; Funk v. Babbit, 156 Ill. 408.

The question of whether it was an undertaking of the firm or by the defendant in error individually was, like other questions of fact, an issue to be determined by the jury. Stecker v. Smith, 46 Mich. 14; Pond v. Starkweather 99 N. Y. 411.

For the error in peremptorily directing a verdict for the defendant in error, the judgment is reversed and the cause is remanded.


author: Mr. Justice Adams

text:
    Joseph N. Barker, Adm’r with the Will Annexed, v. Estate of Isabella H. Thompson.
    1. Administration op Estates — Practice in Filing Claims by Administrators. — Where a person files a claim, as the administrator of an estate, against another estate, he does so in his representative capacity, and if the claim is allowed, it is allowed to the claimant in his representative capacity, and in favor of the estate which he represents.
    2. Same — Allowance of Claims to Personal Representatives. — The allowance of a claim to a person as the representative of one deceased person can not be held to be allowance to him as the personal representative of another.
    3. Practice — On Appeals from the Probate Court. — The practice on appeals from the Probate Court to the Circuit Court is the same as on appeals to the latter court from the judgments of justices of the peace.
    4. Jurisdiction — Necessity of an Identified Transcript in Appeals from fh.e Probate Court. — On an appeal from the Probate Court, where there is on file no transcript of any judgment which can be identified with the judgment appealed from, the Circuit Court has no jurisdiction of the subject-matter and can not try the cause.
    Claim in Probate. — Appeal from the Circuit Court of Cook County; the Hon. Elbridge Haneoy, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed and remanded.
    Opinion filed November 7, 1901.
    Statement. — This is an appeal from a judgment of the Circuit Court, rendered by that court on appeal from the Probate Court. December 12, 1898, a transcript of the record of the Probate Court was filed in the Circuit Court, ■ showing, among other things, the following:
    “ The claim of Joseph E". Barker, administrator with the will annexed of the estate of Isabella H. Thompson, deceased, having been reached for ad justment, and the court having heard the evidence adduced, and being fully advised in the premises, it is ordered that said claim be allowed against said estate, for $7,689.17, as of class seven, and that said claim be paid said claimant in due course of administration.’'
    From this order George Thompson was allowed an appeal to the Circuit Court. In his appeal bond he describes himself as administrator de donis non, with the will annexed, of Isabella H. Thompson, deceased, and this recital appears in the condition of the bond:
    “ The condition of the above obligation is such, that whereas, the Probate Court of Cook County, Illinois, did, on the 18th day of May, A. D. 1898, and- of the May term thereof, A. D. 1898, enter an order and judgment allowing the claim of Joseph FT. Barker, administrator de bonis non, with the will annexed, of the estate of James Eeid, deceased, against the estate of Isabella IT. Thompson, for the sum of §7,639.17, from which said order and judgment of the said Probate Court of Cook County, the above bounden George Thompson, administrator, has prayed for and obtained an appeal to the Circuit Court of Cook County,” etc.
    May 9, 1899, the case was called for trial in the Circuit Court, and the plaintiff, Barker, not appearing, his claim was dismissed at his costs. September 29, 1900, appellant moved the court to vacate the judgment of May 9, 1899, which motion was continued till November 3, 1900, when the court overruled the motion. From the order, or judgment, denying the motion to vacate the judgment of May 9, 1899, this appeal is.
    William E. Plum, attorney for appellant.
    Fred H. Atwood, Frank B. Pease and Chas. O. Lohoks, attorneys for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

The appeal of Thompson, the appellee, was, as appears from his appeal bond, from a judgment of the Probate Court allowing a claim in favor of Joseph N. Barker, administrator de bonis non, with the will annexed, of the estate of James Eeid, deceased. ■ At the time the judgment was rendered there was no transcript before the court, showing the allowance by the Probate Court of any claim in favor of the administrator de bonis non, etc., of the estate of James Eeid, deceased. The only allowance of any claim by the Probate Court shown by the transcript on file in the Circuit Court, when the judgment of May 9, 1899, ivas rendered, was a transcript showing the allowance of a claim of Joseph H. Barker, administrator de bonis non of the estate of Isabella H. Thompson, deceased. When one files a claim as the administrator of an estate, against another estate, he does so in his representative capacity, and if the claim is allowed, it is allowed to the claimant in his representative capacity, and in favor of the estate which he represents, and it is manifest that the allowance of a claim to one as the personal representative of Thompson, deceased, can not be held to be an allowance of a claim to one as the personal representative of Iieid, deceased.

The practice on appeals from the Probate Court to the Circuit Court is the same as on appeals to the latter court from the judgments of justices of the peace. Hurd’s Stat. 1899, Chap. 3, Sec. 66, Chap. 37, Sec. 8, pp. 116, 548.

There being no transcript of any judgment such as that appealed from, the court had not jurisdiction of the subject-matter when the judgment was rendered, and could not then try the cause. Reed v. Driscoll, 84 Ill. 96; Sheridan v. Beardsley, 89 lb. 477; McGillen v. Wolff, 83 Ill. App. 227.

The court not having jurisdiction to render the judgment of May 9, 1899, it had power, at a subsequent term, to set it aside (Keeler v. The People, 160 Ill. 179, 182), and appellant’s motion should have been granted. We think it probable that the attention of the judge of the Circuit Court was not specifically called to the fact of the absence of a transcript showing the judgment appealed from by Thompson. A supplemental transcript filed here shows that November 1,1900, the Probate Court amended its judgment of May 18,1898, so as to show a claim allowed against the Thompson estate in favor of Joseph N. Barker, administrator do bonis non, with the will annexed, of the estate of James Reid, instead of in favor of Barker, administrator with the will annexed of' the estate of Isabella H. Thompson; but no transcript of the amended judgment was filed in the Circuit Court until December 28, 1900, nearly two months after appellant’s motion to vacate had been overruled by the court. Therefore we have not considered the amended judgment of the Probate Court on this appeal.

The order overruling appellant’s motion to vacate and set aside the judgment of May 9,1899, will be reversed and the cause will be remanded for further proceedings, in accordance with this opinion. Reversed and remanded.


text:
    Warren B. Wilson v. Equitable Trust Co., Trustee, et al.
    1. Equity of Redemption— Owner of, Entitled to the Rents, etc. —The owner of the equity of redemption, where the property is sold for the full amount of the mortgage debt, is entitled to the rents of the same during the period of redemption.
    2. Laches — Application of the Doctrine in Equity. — The doctrine of laches is not applied in equity where to do so would be inequitable.
    3. Limitations — Where the Statute Does Not Apply — Trustees.— Where a trust company as receiver obtains possession of a fund in the capacity of a trustee, the statute of limitations does not apply, and such relation is not changed merely because the fund has been paid over to it in a different capacity.
    4. Same — Exemption of Trustees. — To exempt a trust from the bar of the statute of limitations it must be, first, a direct trust; second, it must be of the kind belonging exclusively to the jurisdiction of a court of equity; and third, the question must arise between the trustee and the cestui que trust.

    5. Receivers — Capacity in Which They Hold Funds. — Receivers, directors, and other managers of stock corporations and the like, are in a general sense trustees, or rather quasi trustees, in respect to the narticular persons toward whom they stand in a fiduciary relation.
    6. Trustees — Defense of the Statute of Dimitations. — So long as the duties of a trustee remain undischarged, he can not avail himself of the statute of limitations for a defense.
    7. Equity— When it Will Not Permit the Statute of Limitations to Be Pleaded.— There are cases in which a court of equity will not permit the bar of the statute of limitations to be interposed against conscience, and it will administer a remedy within its jurisdiction and enforce the right for the prevention of fraud.
    Bill for ail Accounting. — Error to the Circuit Court of Cook County; the Hon. Elbridue Hanecy, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed.
    Opinion filed November 7, 1901.
    Statement by the Court. — Plaintiff in error, Wilson, filed a bill against the defendant in error, the Trust Coulpany, and others, seeking an accounting of certain moneys held by the company and obtained by the means herein-below stated. The company answered individually and as trustee of the estate of John D. Jennings, and set up certain matters also hereinafter stated.
    Defendants to the bill, The ¡Northwestern Safe & Trust Co., James M. Stebbins and Joseph B. Long, answered, admitting all the allegations of the bill, and prayed that a decree be rendered in favor of plaintiff in error, Wilson, in accordance with the prayer of his bill.
    The cause was heard upon an agreed statement of facts stipulated by the respective parties to be true, which is in substance as follows:
    January 21, 1889, Alphonso D. Baldwin owned certain real estate in Chicago, known as ¡Nos. 271 and 276 Madison street; that at said date he made a trust deed of said property to Franklin Hatheway to secure a note for $55,000, due at five jmars, to John D. Jennings, which trust deed, ámong other things, provides in substance, viz.:
    Whereas, Baldwin is indebted to Jennings on note for $55,000, and desires to secure'the same, the property is conveyed to Franklin Hatheway, trustee (David M. Hillis, successor in trust); that in the event of a default, trustee shall have authority to take possession, collect and receive all rents, issues and profits thereof, file bill for foreclosure and take decree for sale of the property by said party of the second part as trustee, special commissioner or otherwise, under order of the court; and out of the proceeds pay costs, commissions for trustee, twenty per cent attorneys’ fees, and the debt, rendering the overplus, if any, to party of the first part; and “ pay any rents that may be collected after such sale and before the time of redemption expires to the purchaser pr purchasers of said premises at such sale or sales;’’ that upon filing such bill for foreclosure, David M. Hillis (the successor in trust named in the trust deed) or any attorney may appear for mortgagors and consent to immediate decree and sale, “and to stipulate and agree that upon the entry of the decree confirming said sale, a writ of possession may be issued by said court to put said party of the second part, his successor or person appointed by the court to execute this trust, in possession of said premises until the time of redemption expires;” that the said party of the second part, or person appointed by the court to execute this trust, may, in case of any such default or breach of covenant, take immediate possession of said premises, and collect the rents and profits as above provided until the time of redemption shall expire under any sale that may be made by virtue of this trust deed; and the said parties of the first part hereby expressly waive and release to the said party of the second part, his successor or person appointed by the court to execute this trust, all rights which they now have or may hereafter have under any law of this State to retain possession of said premises after any such default or breach of covenant as aforesaid, until the time for redemption expires.
    June 28, 1889, Baldwin and wife made a second mortgage to Anna Ball for $6,000. February 5, 1889, Baldwin and wife conveyed to Ida F. Gregory, subject to two incumbrances aggregating $61,000. February 7, 1899, a deed of trust to Edward A. Saalfield to secure $1,120, was executed bv Gregory, grantee of Baldwin. February 12, 1889, Gregory and husband conveyed to Williams, Crumpton and Rainey, subject to incumbrance of $62,120. A contract was made the same 'day between Crumpton, Williams and Rainey, grantees of Gregory, to pay liens on the property aggregating $4,000.
    The property passed by mesne conveyances and vested in Andrew J. Park, March 2», 1889, subject to incumbrances aforesaid. Park and wife made a deed to James M. Stebbins, April 13, 1889, which was, though in form a deed, in fact a mortgage. Certain persons about this time made improvements on and were entitled to mechanics’ liens on the mortgaged property.
    February 12, 1890, a bill was filed in the Circuit Court by Franklin Hatheway, trustee, and The Jennings Trust Company, a corporation, to foreclose the trust deed from Baldwin to Hatheway.

      The Trust Company was then trustee under the will of John D. Jennings, and, as such, owner of the note secured by the Hatheway trust deed. A large number of defendants were joined, Baldwin and wife and the junior mortgagees, and all lienholders, and all were brought in by appropriate process.
    Park was served with process February 17, 1890.
    Stubbs & Ganaban, Edward Baggot, Shehan & Lonergan, C. B. Picket and Northwestern Safe and Trust Company, junior lienholders, and Anna Ball, second mortgagee, filed answers and cross-bills. No other' cross-bills were filed.
    July 17, 1890, on motion of complainants, an order was entered in said cause, appointing The Jennings Trust Company receiver of the property in question, which contained the following provision, viz.:
    “ And it is further ordered that the said receiver, until the further order of this court, pay the net proceeds of the rents, issues and profits of the said premises to the holder of the second mortgage on said premises standing in the name of Anna Ball, defendant, provided that in case of foreclosure and sale of said premises, said net proceeds shall be paid to the holder of the certificate of sale.”
    November 24, 1890, a final decree was entered, which contained, among others, the following provisions, viz.: Finds $62,821.72 amount due the complainant, principal and interest, and $3,000 is reasonable solicitor’s fee; that there is due Anna Ball $1,541, principal and interest, after deducting the amount paid her by receiver, as appears by receiver’s report, and that $200 is reasonable fee for her solicitor ; that various amounts are due the several defendants to whom anything is found due; that deed to Stebbins is only a mortgage, and fixes order of priority of several claims. It then decrees that the defendants, or some of them, pay to the complainant and the several other parties the several amounts due them respectively in ten days, and in default thereof that the premises be sold by a master, with the usual provisions of a foreclosure decree, and that deficiency decrees in favor of complainants, Anna Ball, Edward Baggot, Sheehan & Lonergan, Stubbs & Canahan and Cyrus R. Rickert may be entered in case the proceeds of sale should be insufficient to pay them.
    December 27, 1890, the master, Rogers, sold the property in pursuance of the terms of the decree, to Thomas A. Hall, for $72,751.06. Hall purchased on behalf of The Jennings Trust Company, trustee under the will of John D. Jennings, and subsequently assigned the certificate to said company.
    January 21, 1891, the master filed report of sale and distribution, showing out of proceeds of sale the amounts found by the decree due to The Trust Company, Ball, Bag-got, Stubbs & Canahan, Sheehan & Lonergan, C. R. Rickert and James Bolton, were paid in full, and after paying all costs and expenses, left $12.17 in hands of master, which was applied on Long’s claim, leaving unpaid only the claims of Long, The Northwestern Safe and Trust Company, and Stebbins, which are still unpaid.
    March 31, 1892, the master conveyed the property to The Jennings Trust Company. The company, as trustee under the will of John D. Jennings, immediately entered into possession of said property under the master’s deed, and has ever since continued and now is in possession thereof.
    April 4, 1892, The Jennings Trust Company, receiver, made final report of its acts and doings from the date of its appointment to the present time, which shows that it received from rents of said premises $5,837.20 prior to March 28, 1892, disbursed for taxes, necessary charges and expenses $1,842.15; and had paid over and indorsed upon the master’s certificate of sale of said premises the sum of $3,995.05, and asked to be discharged as receiver. On the same day the court entered an order confirming said report, in substance as follows:
    This cause coming on to be heard on final report of receiver', and “it appearing to the court that all the attorneys of record in said cause have been duly notified of the filing of said report and account, and of the application of said receiver to be discharged as receiver herein, and it further appearing to the court that said final report and account is a true and just account of all the receipts and disbursements of said The Jennings Trust Company, receiver, and.that the net balance in the receiver’s hands, to wit, the sum of $3,995.05, has been paid over and indorsed upon the master’s certificate of sale of the premises sold under foreclosure herein in accordance with the order of this court, and the court being fully advised in the premises, it is hereby ordered, adjudged and decreed that said receiver’s final report and account be and the same is hereby approved and said receiver discharged.”
    The only notice given of the application to enter said order was to attorneys of record in the cause, representing the different parties in the cause, and that complainant’s and receiver’s solicitor would call up said report and move that the same be approved and said receiver discharged.
    The solicitor for the complainants in said cause had knowledge at the time of the entry of said order of the conveyance from Park to Jennings, dated December 13,1890, and hereafter referred to.
    Said sum of $3,995.05, mentioned in said receiver’s final report, being the balance in its hands as receiver in said cause, was turned over by it, “ as receiver, to itself as trustee under the will of John D. Jennings, and was received by said defendant as trustee, and has ever since been and still is retained by it as part of said trust estate.”
    Februarjr 23, 1893, the name of Jennings Trust Company was changed to Equitable Trust Company and defendant is same corporation as said receiver.
    December 13, 1890, after decree but before the master’s sale, Park and wife conveyed the property to Samuel A. Jennings by warranty deed, subject to liens found in decree. Deed recorded December 16, 1890.
    Hay 8, 1890. W. G. Rainey recovered judgment against Park for $391.24. Execution on this judgment was levied on the property June 17,1890, and same was sold at sheriff’s sale July 22, 1890, to'Rainey, the certificate being recorded July 23, 1890.

      February 12,1891, Samuel A. Jennings and wife conveyed to present complainant by quit-claim.
    April 15, 1891, complainant acquired said sheriff’s certificate.
    October 1, 1894, sheriff made deed to present complainant in said certificate.
    July 27, 1896, Samuel A. Jennings made assignment to complainant of all rents due and to become due.
    Before suit brought complainant demanded $3,995.05 and interest from defendant, and exhibited the several assignment and conveyances above.
    The Equitable Trust Company, as trustee of estate of John D. Jennings, is an active trustee, having full title to and possession of all the assets of said estate, and authority under will of John D. Jennings, creating said trust to handle, manage, control and represent said estate.
    It was also further agreed that all errors of pleading were waived; that if complainant is entitled to recover the sum of money claimed by him upon the facts set forth under any state of pleading, or in any form of action, a decree may be entered in his favor under the bill filed herein, and defendant shall have benefit of any defense it could have on said facts in any form of action or state of pleading, whether defense set up in answer or not.
    ETo other evidence than the above agreed statement was introduced on the trial.
    Warren B. Wilson, attorney pro se.

    Dkfrees, Brace & Bitter, attorneys for defendants in error.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

The first question presented for decision is as to whether Wilson, who was either the owner of the equity of redemption, or entitled to all the rights and interests of such owner by reason of the assignment of Samuel A. Jennings of date July 27, 1896, mentioned in the statement, during all the "time between December 27, 1890, and March 28, 1892, the period of redemption, was entitled to the fund in the bands of the Trust Company, and particularly specified in the statement, leaving out of consideration for the time being any question as to w’hether he should be debarred, as claimed by the Trust Company, by reason of a prior adjudication of his rights, by his laches or because of the statute of limitations.

It appears from the statement that the fund here in question, viz., $3,995.05, came into the hands of the Trust Company by virtue of the order of the Circuit Court appointing it receiver in the foreclosure case brought by it and Hatheway, the trustee, to foreclose the trust deed made by Baldwin to Hatheway, and conveying the premises to which Wilson or his grantor acquired title pending that foreclosure. The Trust Company was also the owner of the note secured by said trust deed, and was in fact the purchaser of the same property at the master’s sale, thouo-h the bid thereat was made in the name of, and the certificate of the master issued to, Thomas A. Hall on behalf of The Trhst Company as trustee under the will of John D. Jennings. Hall subsequently assigned the certificates to the company and the property was conveyed by the master to it as trustee under the will of John D. Jennings after the time for redemption had expired. The fund in question arose from the rents collected by the Trust Company as receiver, after the master’s sale and during the period of redemption, and was the net procéeds of such rents, during that time, after deducting disbursements for taxes, necessary charges and expenses. The amount of this fund was paid over in February and March, 1892, by the Trust Company, as receiver, to itself as purchaser at the master’s sale, and as trustee under the will of John D. Jennings. Tbe company has ever since retained and still retains said money as a part of said trust estate, and claims the right to hold it by reason of the provision in the trust deed foreclosed, which requires that, in the event of a foreclosure, any rents that might be collected after the sale and before the time of redemption should expire, should be paid to the purchaser of the premises sold; also because the order of the court appointing the receiver made it his duty to collect the rents of said realty and directed him, until the -further order of the court, to pay the net proceeds of the rents, issues and profits of said premises, after the payment of a second mortgage to Anna Ball, to the holder of the certificate of sale; also because the Trust Company was the purchaser at said sale, and as such purchaser received said rents from itself as receiver, pursuant to the order of the court in that behalf, and because the action of the receiver in that regard had been approved by the court.

A similar question to the one here presented was very thoroughly and fully considered by this court, Mr. Justice Sears delivering the opinion, in the case of Carroll v. Haigh et al., 97 Ill. App. 576, in which we held that the owner of the equity of redemption was entitled to the rents of property sold on a foreclosure during the period of redemption, where the property sold for the full amount of the mortgage debt, as is the case here, notwithstanding a provision in the mortgage that the purchaser at the master’s sale should be entitled to such rents during that period. Mo argument nor authority has been presented in the case at bar which seems to justify a change of the conclusion there reached.

But it is said that Wilson is here debarred of any relief, because his rights have been adjudicated in the foreclosure suit, he having acquired his title pendente lite, and is therefore bound by the adjudication in that case. However sound that contention may be, as a general rule, we are of opinion it can not be applied here. The first order relied upon is the order appointing the receiver, which is quoted in the statement. It does not purport to be an adjudication of the rights of any one, but is simply a direction to pay the rents to the holder of the certificate of sale. The next order relied upon is the order confirming the receiver’s final report, also set out in full in the statement. The order does not purport to be an adjudication of the right of any one to the fund in question, but only approves the acts of the receiver in paying over the fund in question in accordance with the previous order of the court to the holder of the master’s certificate and discharging the receiver. We are at a loss to perceive how these orders constitute any adjudication that the Trust Company was entitled to the fund here in question.

It is next contended that Wilson is barred by his laches, not having filed his bill for more than eight years after the Trust Company, as trustee of the Jennings estate, received the fund in question. The doctrine of laches is not applied in equity when to do so would be inequitable. No notice was given by the Trust Company, either in its capacity of complainant, receiver, or purchaser in the foreclosure case, to the owner of the equity of redemption of the application to confirm the receiver’s report, notwithstanding the fact that its solicitor at that time bad knowledge that Samuel A. Jennings, the grantor of Wilson, had acquired the equity of redemption and was not a party to the cause; nor does it appear that Wilson or his grantor had any notice of said orders prior to the filing of the bill herein. Moreover, the rights of no innocent third person have intervened during the lapse of time since the receiver was discharged, and the money is still in the hands of the Trust Company. It can make no difference that the company holds the money in a different capacity. Under such circumstances it would certainly be highly inequitable to apply the doctrine of laches. Stiger v. Bent, 111 Ill. 330-41; Harris v. McIntyre, 118 Ill. 275-89; Sutherland v. Reeve, 151 Ill. 384-95; Coryell v. Klehm, 157 Ill. 462-73; Farwell v. Gt. Wes. Tel. Co., 161 Ill., 522-95 and cases cited.

In the Stiger case, supra, the court say:

“ A court of equity applies the doctrine of laches in denial of relief prayed where the statutory period of limitations has not expired, only where, from all the circumstances in evidence, to grant the relief to which the complainant would otherwise be entitled will, presumptively, be inequitable and unjust, because of the delay to the defendants.”

In the Harris case, supra, the court say:

“ In cases, however, where there is no statute applicable, the time in which a party will be barred from relief in a court of equity must necessarily depend upon the peculiar circumstances of each case.”

In the Farwel'l case, 'supra, it was held that the doctrine of laches does not apply in equity in cases of fraud, until the discovery of the fraud, or from the time when the fraud could have been discovered by the use of reasonable diligence.

In the Sutherland case, supra, the court, in speaking of when the statute of limitations would be applied in equity, said, “A court of equity will not apply the law statute where it would be inequitable to do so,” and held, under the circumstances of that case, not only that the statute of five years did not apply, but also that laches did not apply, although there had been a lapse óf a much longer time, because, under the circumstances, to apply that doctrine would have been inequitable.

The money still being in the hands of the Trust Company and the rights of no innocent third parties having intervened, it would certainly be unconscionable to permit the company, because of mere lapse of time, to retain money which it had received without any basis of consideration, and which rightfully and equitably belongs to Wilson, when the company can and will be fully protected in making payment to Wilson under a decree in equity.

It is further contended that Wilson is barred by the statute of limitations from any relief, but we think this contention is untenable, for two reasons: first, because the Trust Company, as receiver, obtained the fund in question in the capacity of a trustee, and that relation has not changed merely because the money was paid over to itself in a different capacity.. The statute of limitations is not applicable to such a case — will not be allowed to be interposed as a defense by such a trustee as this Trust Company is shown to be. High on Eeceivers, Sec. 1; 2 Perry on Trusts, Sec. 82; Angelí on Limitations, Secs. 166, 168, 174; 1 Pomeroy’s Eq. Juris., Secs. 156, 157; King v. Goodwin, 130 Ill. 102-10; Henry Co. v. Winnebago Swamp Drainage Co., 52 Ill. 299; Albretch v. Wolf, 58 Ill. 186-90; Farman v. Brooks, 9 Pick. 212; Houseal v. Gibbes, 1 Bailey (S. C.), Eq. 482.

In section 166, supra, of Angell, the author says :

“ To exempt a trust from the bar of the statute, it must be, first, a direct trust; second, it must be of the kind belonging exclusively to the jurisdiction of a court of equity; and third, the question must arise between the trustee and cestui que trusty

The statement of the author as to the rule is followed and confirmed by the Supreme Court of this State in the following cases: King v. Hamilton, 16 Ill. 190-5; Albretch v. Wolf, supra; Governor v. Woodworth, 63 Ill. 254-8; Hayward v. Gunn, 82 III. 385-9; People v. Oran. 121 Ill. 650-5.

That the trust here in question is a direct or express trust appears clear, though there seems to be no direct adjudication on the matter. In the section from High referred to above, the author says that a receiver holds the fund or property intrusted to his care for the benefit of whoever may finally establish title thereto. In the section from Perry on Trusts, supra, the author says that a trust, speaking of an express trust, may be proved by any subsequent acknowledgment by the trustee in writing, or u by any writing (of the trustee) in which the fiduciary relation between the parties and its terms can be clearly read.”

In this record appears the report of the Trust Company in writing, signed by it, which shows it acquired the fund here in question as receiver. In that capacity it held the fund, as Mr. High says, for the benefit of whoever may establish title to it.

In- section 168, supra, of Angelí, the author says :

“ The most common mode of creating direct trusts, not cognizable at law, is by the appointment and qualification of executors and administrators.”

In King v. Goodwin, supra. the Supreme Court in speaking of a receiver on a creditor’s bill, said:

“ The receiver is a quasi trustee, holding the fund-for the benefit of whoever may establish title thereto.”

In 1st Pomeroy’s Eq. Juris., Sec. 156, the author says that there is included within express trusts, “ the relation subsisting between executors and administrators on the one hand, and legatees, distributees and creditors on the other.” The same author, in section 157, says that this equitable doctrine of trusts includes guardians of infants, committees or guardians of the insane, receivers, directors, and other managers of stock corporations and the like, and that such persons are in a general sense trustees, or rather quasi trustees in respect of the particular person toward whom they stand in a fiduciary relation.

In view of these authorities, we are of opinion that the Trust Company was not only a trustee for Wilson, but that the trust is express or direct.

The trust is of a kind exclusively within the jurisdiction of equity, for the reason that Wilson could not sue the receiver without the permission of the chancery court that appointed it. The question here arises between the trustee and the cestui que trust, and therefore the trust fulfills all the requisites, as laid down by the authorities, so as to relieve it from the bar of the statute.

It is also said in the Henry Co. case, supra, “ There are cases in which a court of equity will not permit the bar of the statute to be interposed against conscience, and it will supply and administer a remedy within its jurisdiction and enforce the right for the prevention of a fraud.” (Citing cases.) Also in the Albrecht case, supra, the court say: “ The rule seems to be general and well settled bv authority that so long as the duties of the trustee remain undischarged the trustee can not avail of the statute of limitations for his defense,” and held in the case, which was an express trust under a will for the payment of certain debts, that the statute of limitations was not a defense, so long as the duties of the trustee had not been discharged and he bad not repudiated the trust. The duties of the trust in the case at bar have not been discharged and the trustee did not repudiate the trust imposed upon it before the filing of the bill.

2. It would be so far fraudulent as to be inequitable to allow the defense of the statute of limitations to be made against Wilson’s claim. Henry County v. Winnebago D. Co., 52 Ill. 299; Long v. Thompson, 60 Ill. 27; Anderson v. Anderson, 178 Ill. 160-4; Johnson v. Waters, 111 U. S. 640-68; Arrowsmith v. Gleason, 129 H. S. 86-100; Sutherland v. Reeve, 151 Ill. 384.

In the Long case, supra, it was held that an order of distribution of the suplus in the hands of an administratrix directing one-third of such surplus to be paid to her without notice to the heirs, was void for want of such notice, and was set aside.

In the Arrowsmith case, supra, an order of a Probate Court to sell an infant’s land, which was procured by fraud, was set aside in equity, though the proceeding appeared to have been regular in matter of form. The court say:

“The fact of being a party does not estop a person from obtaining in a court, of equity relief against fraud. It is generally the parties that are the victims of fraud. * * * In such cases the court does not act as a court of review, nor does it inquire into any irregularities or errors of proceeding in another court; but it will scrutinize the conduct of the parties, and if it finds that they have been guilty of fraud in obtaining a judgment or decree, it will deprive them of the benefit of it, and of any inequitable advantage which they have derived under it.”

In the Anderson case, supra, the court quotes from Nelson v. Rockwell, 14 Ill. 375, the following:

“ Fraud is one of the broadest grounds of equity recognized by the courts, and relief may be obtained against a judgment at law, although the party might find a remedy in a court of law; ” and affirmed a decree which set aside a judgment of the County Court between .a guardian and his ward on account of fraud, which consisted of a concealment by the guardian of certain facts within his knowledge, and which the ward did not know, and in making false representations. The court quotes from Perry on Trusts, as follows:
“It is, however, his (trustee’s) duty to inform the court fully of all material facts within his knowledge, for a decree procured by any concealment or other 'management would be opened and the trustee might be held responsible.”

In the Sutherland case, supra, the court, in speaking of a like defense of the statute of limitations, said :

■ “ It is sufficient to say that this is an attack upon a decree or order of this court, obtained without notice to the petitioner and under circumstances which it is alleged amount to a fraud. A judgment obtained by fraud is not only a fraud upon the party, but upon the court. The statute of limitations, in cases of this nature, is applied in equity only -by analogy to the limitations at law and a court of equity will not apply the law statute where it would be inequitable to do so.”

' In this case the failure of the Trust Company to give notice to the court, to Wilson or to his grantor, although its solicitor at the time the order of distribution was entered, knew that Wilson’s grantor had Acquired the equity of redemption, was, to say the least, such a fraud as would make it inequitable to allow the statute of limitations to be interposed as a defense.

Other matters urged by counsel, and not especially referred to herein, have been fully considered, but they are not, in our opinion, sufficient to modify the conclusions reached by us.

The-decree of the Circuit Court .dismissing the bill is reversed, and that court is directed to enter a decree in favor of the plaintiff in error for $3,9.95.05, together with interest thereon from April é, 1892, at five per cent per annum, with annual rests thereafter on the fourth day of April each year. Reversed.


author: Mr.. Presiding Justice Windes

text:
    John B. Delbridge v. Lake, Hyde Park & Chicago B. & L. Ass’n.
    1. Practice — Proceedings on Reversed Oases. — When a case is reversed by the Appellate Court and remanded for a new trial, it is the duty of the trial court on the second trial to obey the mandate of the appellate tribunal and a failure to do so will be cause for a second reversal.

      2. Building and Loan Associations — Dufies of the Secretary— Sureties. — Where the by-laws of a building and loan association require the secretary to turn over to the treasurer at the end of each month all moneys received by him during the month, he commits a breach of his duty when he fails to do so, and should at once be called upon to account, and in case he is not so called upon, the liability of his sureties will be limited to moneys received by him during the month.
    8. Evidence — Books of the Secretary of a Building and Loan Association. — The books kept by the secretary of a building and loan association in the regular course of his business as such, in connection with other evidence that he received moneys of the association which, under its by-laws, it was his duty to pay over to the proper officer when lawfully required to do so, are competent evidence as tending to show admissions by him that he received the several amounts belonging to the association as entered therein.
    Debt, on an official bond. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed and remanded.
    Opinion filed November 7, 1901.
    Arthur B. Wilson and Horace G. Stone, attorneys for appellant.
    ■ Mastekson & Haft, attorneys for appellee.
   Mr.. Presiding Justice Windes

delivered the opinion of the court.

This case is in this court on a second appeal from a judgment in favor of appellee and against appellant of $5,000 debt and $2,088.77 damages. The opinion on the first appeal, 82 Ill. App. 388, shows the pleadings, and the bylaws of the appellee association relating to the duties of its secretary and treasurer, offered in evidence, so far as pertinent here, to which we refer. The action was debt • on the bond of a former secretary of the association, W. F. McWhinney, who died August 22, 1894, against appellant, one of said secretary’s sureties. The proof in this record tends to show there was in the hands of McWhinney moneys belonging to the association on June 1, 1894, amounting to $1,262.09, and that at the time of his death this amount had increased to $1,608.77, which, with interest, makes the damages included in the judgment here questioned.

On the former appeal the record showed that on March 1, 1894, McWhinney settled in full with the treasurer of the association, and at that date owed it nothing, and that after that date the treasurer never made any demand on the secretary for money, although it was his duty by the bylaws “ to demand and receive from the secretary, at least once in each month, all moneys paid into the association.” It was further shown that no demand ivas made on the secretary by the treasurer or any other officer of appellee in any of the months of March to August, both inclusive. We held that the secretary committed a breach of his duty ivhen he first failed to turn over to the treasurer of the association moneys received by him during the month, and that the liability of the secretary’s sureties did not extend beyond the end of the month when the first demand should have been made. That ruling controls this court, and should have been the guide of the trial court on the second hearing, though such seems not to have been the case.

When counsel for appellant sought to show ivhat moneys were received by the secretary in March, 1894, and what was the shortage of the secretary to the association for that month, the evidence was objected to and the objection sustained. The ruling was directly contrary to the decision of this court and necessarily must work a reversal. Inasmuch as our former judgment is the law of this case, it was the duty of the trial court to follow it. It is true the treasurer did not testify on the second hearing, and there is no evidence that no demand was made on the secretary, as was shown by-the former record. But this would not change the result, as it was incumbent on appellee, under its by-laws, to prove a demand on the secretary before he could be in default for failure to pay money received by him to the treasurer.

Even on appellee’s theory of the case, the secretary was in default on June 1, 1894, for money received at some time prior thereto during his term. This being so, if we were right in our views expressed in the former appeal, appellant would not be liable for any subsequent defaults of the secretary, and therefore the judgment could in no event be for more than $1,262.09 and interest.

It is strenuously insisted that error was committed in allowing in evidence, over the objections of appellant, the books of account of the association, certain tickets made by the deceased secretary, Miss Alcott, his assistant, and one J. B. Alcott, and a quarterly report made by said secretary of date June, 1894. -

The books were kept by McWhinney in the regular course of business, and in connection with other evidence that he received the money of the association, that under the bylaws it was his duty to “perform such other duties'as are prescribed by the charter and by-laws, or that usually pertain to his office, or may be required by the board of directors or the association,” and under the same by-law that it was “ the duty of the treasurer to demand and receive from the secretary, at least once a month, all moneys paid into the association,” we think they were competent as tending to show admissions by McWhinney that he received moneys of the association, the several amounts entered thereon. The same is.true as to the tickets and the quarterly report made by himself. The tickets made by Miss Alcott and by J. B. Alcott were not, so far as shown by this record, admissible, but were proper to be used on a proper showing, to refresh Miss Alcott’s recollection as to the different amounts which they purport to show were received by her and J. B. Alcott, and which she testified went into the hands of McWhinney. 3 Jones on Evid., Secs. 877, 878, 880, 883 and 884; 1 Gfreenleaf’s Evid., Sec. 436-7; Huff v. Bennett, 6 . N. Y. 337; Gard v. Foot, 56 Conn. 369-74; Flynn v. Gardner, 3 Ill. App. 254; Hayden v. Hoxie, 27 Ill. App. 537.

To allow a witness to use a writing to refresh his recollection, it is not necessary that it should have been made by himself, provided, after having inspected it, he can speak to the facts on his own recollection.

We have not referred in detail to each of the specific objections to these several items of evidence, but have considered them all, and are of opinion none of them are well taken, except as indicated. Objections are made to other items of evidence admitted by the court, all of which have been considered, and are, in our opinion, not tenable, except as to evidence of money claimed to have been received by McWhinney prior to the commencement of his term as secretary, and as to the practice of secretaries of other building associations with regard to receiving money. These last two items of evidence are, in our opinion, immaterial and should have been excluded.

The court refused to allow appellant to show what the treasurer testified on the first hearing as to matters material to be considered. We think the ruling was proper. Ho reason was shown why the treasurer himself was not called.

The court was requested to give, but refused, the following instructions:

“ 3. If the jury believe from theevidence that the plaintiff corporation had a treasurer whose duty it was to receive and disburse all the moneys of the said plaintiff, and that it was not the duty of said McWhinney, as secretary, to receive or disburse such money, then the jury are instructed to bring in a verdict for the defendants, even though said McWhinney did receive such money and failed to account for the same.

4. The jury are instructed, as a matter of law, that it was the duty of the plaintiff to make a demand at the end of each month upon said McWhinney for all money and property received by him for the month ending on the day of said demand; and, if said plaintiff neglected to make such demand at the end of any one of said months, then any further liability of the bondsmen ceased and determined, and they were not liable for any further money or property received by said McWhinney.”

We think the third instruction was properly refused, because not justified by the evidence. The evidence tends to show it was the duty of the secretary to receive the moneys of the association, and does not sustain the opposite hypothesis which is included in the instruction.

The fourth instruction was not proper, because it fails to refer the jury to the evidence as a basis for determining whether or not the plaintiff made demand upon McWhinney, and for that reason it was not error to refuse it.

For the errors in rulings on evidence, the judgment is reversed and the cause remanded.


text:
    John C. Robinson v. Board of Education.
    1. ’Bids — Contracts for Public Works — Forfeitures.—Where a person makes a bid for the performance of a public work for a board and accompanies his bid with the deposit of a certain sum of money under an agreement to forfeit the sum deposited in case of his neglect or refusal to enter into a contract to do the work, and without any default on the part of the board,.he fails to execute the contract agreed to be made, he can not recover back the money so deposited, and the board may rightfully declare the same forfeited to its own use.
    2. Forfeitures — Application of the Rule that Courts Incline Against. — The rule that courts incline against forfeitures is never carried to the extent of relieving a party against the gxpress terms of his own contract.
    Assumpsit, to recover back a deposit. Appeal from the Circuit Court of Cook County; the Hon. Charles Gr. Neely, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed November 7, 1901.
    Francis S. Wilson and Darrow & Thompson, attorneys for appellant.
    Daniel J. McMahon, attorney for appellee; Albert B. Force, of counsel.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

Appellant sued appellee to recover a deposit of $560 made by him with appellee on May 15,1896, accompanying his bid for the doing of certain mason work on the Kosminski school house, Chicago, the declaration being an amended special count and the common counts. A demurrer was sustained to the amended special count, and no error is assigned on the court’s ruling in that behalf. The plea was the general issue. A trial before the court and a jury resulted in a verdict for the defendant, the appellee, and judgment thereon, from which this appeal is taken.

The abstract of the record is wholly insufficient and would justify the court in affirming the judgment for that reason, but we have, aided by the appellee’s additional abstract, considered the merits notwithstanding, and have reached the same conclusion.

It appears from the evidence that the appellee published an advertisement for bids for the mason work to be done on the Kosminski school house, Chicago, and that appellant, who was a mason contractor of long experience in Chicago, put in a bid of $18,600, and deposited a check therewith of $560, payable to the order of appellee. By mistake in footing the different items which go to make up the bid, an error of $10,000 was made. Appellant says the bid .“should have been $29,000. There was a mistake in carrying $10,000. This shows in my book and I put it in my bid on the basis of $19,000, making a small cut in that figure.” The bid, which' was upon a printed blank, had printed conditions attached below the bid, and are in part as follows:

“Deposit enclosed. Certified check $560.
Chicago, Majr 15, 1896.
To the Board of Education of the City of Chicago :
The undersigned hereby offers to furnish material and do all the mason work required in the erection of a school building on the lot situated on Fifty-fourth and Ingleside avenue, in strict accordance with the plans and specifications prepared for same on file in the office of the architect or chief engineer of your board, for the sum of eighteen thousand six hundred dollars ($18,600) and agrees to be bound by the conditions as printed below.
J. C. .Robinson.

CONDITIONS UNDER WHICH PROPOSALS MUST BE MADE AND INSTRUCTIONS TO BIDDERS.

All proposals for furnishing either labor, materials or supplies must be sealed in envelopes furnished for the purpose and addressed to the committee asking for proposals, indorsed, ‘ Proposals for ■-,’ (stating for what the proposals are intended), and must be left with the business manager at his office not later than the hour named and limited for receiving said proposals. All bidders must sign their full name and address. Firms must, in addition to the firm signature, give the full name of each individual member composing the firm.

All proposals of every kind must be accompanied by appropriate deposits, as hereinafter provided. On proposals of $100 or less, twenty per cent; between $100 and $200,fifteen per cent; between $200 and $500, ten percent; between $500 and $2,000, five per cent; above $2,000, three per cent. Deposits must be in the form of cash or of certified checks drawn upon some banking institution in good standing, doing business in Chicago, and made payable to the order of the business manager.

Ho proposals for any purpose shall be considered unless they shall be accompanied by the proper deposits required. Upon the acceptance of any proposal the board or the committee which calls for the proposals shall have the right to require from the party or parties who made the proposal, a written contract or a reasonable or satisfactory bond, or both, to secure faithful compliance with the terms of the proposal, and the covenants thereof. If any proposal shall be withdrawn before the conclusion of the second regular meeting of the board following the receipt of the proposal, the deposit accompanying it shall be subject to forfeiture and retention by the board as liquidated damages. Bidders to whom contracts are awarded will be required to execute contracts and bonds within ten days after date of written notice that their contracts and bonds are ready for signature, said notice to be mailed to their address, as given in their proposal. In the event of their refusal or failure to execute said contracts and bonds within the time specified, their deposits will be subject to forfeiture.”

It appears from the evidence that August Fielder was the architect of appellee at the time in question and had charge of the building of new buildings and the making of plans for the construction of masonry work; that appellant a short time before the bids were opened, as he and Fielder both testify, came to the latter’s office and told him that he had made a mistake in his estimate and wished to withdraw it. On the 22d of May following, appellant wrote the following communication to appellee, viz.:

“ Discovering an egregious error in mv proposal forth e mason work on school building to be erected on Fifty-fourth street and Ingleside avenue, I wish to withdraw my bid.
Hoping this will meet with your favor, I am, yours,
J. 0. Bobinson.”

Again on the 4th of November following he wrote to appellee as follows:

“About the loth of May last I submitted a bid to vour honorable body for work on a school building, in which I discovered I had made a clerical error. I immediately reported this to your architect, but failed to stop the consideration of the proposal by the committee on buildings, ■who awarded me the contract, although I had notified them of this error and of my inability, without great loss, of doing the work, and in consequence of which the check deposited with proposal was confiscated, regardless of the fact that I did immediately show the unmistakable error. In fact, I had gone to the architect to withdraw my proposal, arriving just too late.”

The bids were opened and the contract for the work was awarded to appellant by the appellee on the afternoon of May 15, 1896, upon the former’s bid of $18,600, and the appellee, as the preponderance of the evidence clearly shows, first knew that appellant claimed a mistake in his bid some time after the contract had been awarded to him. The court ruled out the evidence of Fielder ivhen it was offered to be shown by him that he notified the appellee of appellant’s mistake in his bid. Had this evidence been admitted, it could, in our opinion, have made no difference on the question of preponderance. In any event, we think under the other facts of the case, the exclusion of this evidence could make no difference with the result of this appeal.

In the conditions accompanying appellant’s bid and deposit, is the following provision, to wit:

“If anjr proposal shall be withdrawn before the conclusion of the second regular meeting of the board following the receipt of the proposal, the deposit accompanying it shall be subject to forfeiture and retention by the board, as liquidated damages.”

Conceding that appellant notified the board of his mistake, and that he requested to withdraw his bid at the time when he claimed to have done so, it -was at a time before the conclusion of the second regular meeting of the board following the receipt of the proposal and the deposit of appellant by appellee. This made appellant’s deposit subject to forfeiture as liquidated damages by the appellee under the terms of his bid. The appellee retained the check for the amount of appellant’s deposit and collected the same, because appellant failed and refused to perform his contract after it had been awarded to him as the lowest bidder. This the board was justified in doing. We think the case of Village of Morgan Park v. Gahan et al., 136 111. 516, is conclusive on this point. The substance of the decision is given in the syllabi, viz.:

“ Where a person accompanies his bid for the performance of certain public work for a village with a deposit of a certain sum of money under an understanding and agreement to forfeit the sum so deposited in case of his neglect or refusal to enter into a contract to do the work, and without any default on the part of the village, he fails to execute the contract agreed to be made, he can not recover back the money so deposited, and the villdge may rightfully declare the same forfeited to its own use. The rule that courts incline against forfeitures has no application to such a case, and the rule is never carried to the extent of relieving parties against the express terms of their own contracts.”

There being no reversible error in the record, the judgment of the Circuit Court is affirmed.


author: Me. Justice Sears

text:
    John Stott v. City of Chicago et al.
    1. Civil Service Act — Sufficiency of a Plea to a Petition for a Writ of Mandamus. — Under the civil service act (Laws 1895, p. 85) a plea to a petition for a writ of mandamus to compel the mayor and the superintendent of police to place the name of the petitioner upon the pay-roll, setting up that the relator had never been certified under such act, and that he had been discharged from the service, is a good plea and constitutes a sufficient answer to a petition which seeks to compel the placing of his name upon the pay-roll.
    Mandamus, to compel the mayor and superintendent of police to place the name of the petitioner upon the pay-roll. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed November 7, 1901.
    Statement. — Appellant filed his petition in the Superior Court, praying for the issuing of a writ of mandamus to compel the mayor and the superintendent of police of the city of Chicago to place the name of the petitioner upon the police pay-roll of said city. The petition sets up in effect that petitioner had passed an examination under the provisions of the civil service act, and had been given 100 upon a scale of 100 as indicating his qualification; that by reason of such examination and by reason of prior military service, petitioner was entitled “ to stand at the head of eligibles for appointment upon the police force of said city;” that at the time of taking such examination and for a long time prior thereto, since December 1, 1890, petitioner was a duly appointed police patrolman of said city; that on March 14, 1898, the then superintendent of police of said city wrongfully caused petitioner’s name to be dropped from the police pair-roll of said city; and that by reason thereof petitioner has been unable since March 4, 1898, to obtain payment of his salary as police patrolman. The petition also sets up various appropriations by the city council for the payment of salaries of police patrolmen.
    The respondents filed pleas by.which several defenses were set up. Demurrers were sustained to all of their pleas except the third, and as to that plea the demurrer was overruled. The petitioner thereupon elected to stand by his demurrer to the third plea, and the petition was dismissed at his costs.
    The third plea sets up that petitioner was dismissed from the police force of the city of Chicago by the respondent, the superintendent of police, for the reason that in the judgment of his superior officers petitioner was inefficient, and because the lack of sufficient appropriations for payment of salaries to police patrolmen made the discharge of some patrolmen necessary. The plea also avers that the petitioner has never been certified for appointment by the civil service commission of the city of Chicago. This appeal is from the judgment dismissing the petition at the relator’s costs.
    W. P. Black and A. B. Chilcoat, attorneys for appellant.
    Charles M. Walker, Corporation Counsel, and Boswell B. Mason, Assistant Corporation Counsel, attorneys for appellees.
   Me. Justice Sears

delivered the opinion of the court.

The only question presented upon this appeal is as to the sufficiency of the third plea. The petition does not allege that petitioner has ever been appointed police patrolman under the provisions of the civil service act (Hurd’s Statutes, 1899, 351), but merely that he was, by reason of an examination and prior military service, at the head of the list of eligibles. The plea does aver that petitioner has never received any such appointment under the civil service act.

In McNeil v. City, 93 Ill. App. 124, which was also a proceeding for mandamus, the petition alleged that the relator there had never been discharged from his position as a police patrolman, but that his name had been wrongfully dropped from the pay-roll. The .petitioner in that case, as here, was holding a position as a police officer when the civil- service act first became operative. We held in that case that inasmuch as the petitioner was not an appointee under the civil service act, but was what is termed a “ hold-over,” he was subject to removal without reference to the provisions of the civil service act; but we held also that inasmuch as the petition there alleged that the petitioner had not in fact been discharged, but merely wrongfully dropped from the pay-roll, the petition was good upon demurrer.

In this case, as in the McNeil case, the petition alleges that petitioner is a “hold-over,” and here, as there, the allegation is that he has not been discharged, but simply dropped from the pay-roll. But here there is a plea to the petition, and the plea avers that the petitioner has been discharged, and it seeks to justify the discharge. The judgment here resulted upon the overruling of a demurrer to this plea. We are of opinion that the plea is good.

Relator, as a “ hold-over,” was not within the protection afforded by section 12 of the civil service act, which regulates the manner of discharge of persons holding as appointees under the act.

The plea setting up that relator has never been certified under the civil service act, and that he had been discharged from the service, was a good plea and constituted a sufficient answer to the petition, which sought to compel the placing of his name upon the pay-roll. McNeil v. City, supra.

But it is contended by the learned counsel for appellant that even if the relator was not within the provision of section 12 of the civil service act, yet under the provision of Sec. 7, Art. 2, of Chap. 24, R. S., the third plea did not aver a sufficient discharge of the relator. But section 7, relied upon, does not apply to any other than city officers appointed by the mayor. It is unnecessary to determine whether a police patrolman is such an officer as is contemplated by this section, for the petition does not allege the manner of the relator’s appointment. It in no way appears from anything contained in the petition that he was a city officer appointed by the mayor. If we look to the city ordinances of the city of Chicago in force at the time when the petition alleges that relator was appointed, we would find they provided that police patrolmen should be appointed by the superintendent of police. These ordinances are not pleaded, however, and it is sufficient to say, without any reference to their provisions, that the petition fails, by its allegations, to bring the relator within the operation of the statute relied upon.

We are of opinion that the third plea was a sufficient answer to the petition, and that the learned trial court was right in overruling demurrer to that plea.

Judgment is affirmed.


text:
    William M. Foley, Adm., etc., v. Suburban Ry. Co.
    1. Pleading — Effect of a Failure to Allege that a Deceased Person Left Next of Kin. — Where a declaration, as originally filed, in an action for damages sustained by the death of a person from negligence, fails to allege that the deceased left a widow or next of kin surviving him, it fails to state a cause of action, and an amendment filed more than two years after the cause of action arose, which alleges that he did leave surviving him a widow and children, is barred by the statute of limitations.
    Trespass on the Case. — Death from negligent act. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed November 7, 1901.
    Frank H. Novak, attorney for appellant.
    Clarence A. Knight and William G-. Adams, attorneys for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

This is a suit by appellee against appellant for alleged negligence causing the death of plaintiff’s intestate. The suit was commenced July 25, 1899, and the declaration was filed August 8, 1899. It is averred in the declaration, and is conceded by counsel for appellant, that the accident which resulted in the death of appellant’s intestate, occurred July 27, 1897. The original declaration, filed August 8, 1899, contained no averment of the survival of any kin of appellant’s intestate. January 2, 1901, appellant, by leave of the court, filed an amendment to the declaration, alleging the survival of certain persons, naming them, and that they were the heirs and next of kin of appellant’s intestate.

To the declaration, as amended, a plea of the statute, limiting such actions to two years after the cause of action accrues, was pleaded, to which plea appellant filed a demurrer, which the court overruled, sustained the plea, and rendered judgment for appellee. Foster v. St. Luke’s Hospital, 191 111. 94, is decisive that the demurrer was properly overruled and the plea sustained.

The judgment will be affirmed.


author: Me. Peesiding Justice Windes

text:
    John Fitzgerald v. A. E. Hedstrom et al., doing business as E. L. Hedstrom & Co.
    1. Special Findings — Rendition of Judgments Upon. — Where a special finding is sustained by the proofs and is contrary to the general verdict in the case, the court will be justified, under the statute, in rendering a judgment on the special finding.
    2. Ordinary Care — In Actions for Personal Injuries. — In an action for personal injuries occasioned by the negligence of another, it is indispensable that the exercise of ordinary care be shown by the party injured.
    3. Evidence — Photographs, When Admissible. — In an action for personal injuries where photographs offered in evidence are shown to be a correct representation of the premises where the accident happened, except that snow was on the ground at the time they were taken, some three weeks afterward, held, that they were properly admitted.
    Trespass on the Case, for personal injuries. Error to the Circuit Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed November 7, 1901.

      E. J. Felling-ham and W. Gr. Shockey, attorneys for plaintiff in error.
    Walkee & Payne, attorneys for defendants in error.
   Me. Peesiding Justice Windes

delivered the opinion of the court.

Plaintiff in error, Fitzgerald, brought case against defendants in error to recover damages for injuries received ■ by him in the coal yard of defendants in error in Chicago on October 22, 1895. A trial resulted in a verdict of guilty and assessment of the plaintiff’s damages at $1 and judgment thereon, after a denial of a new trial to the plaintiff.

The jury also, with the general verdict, made the following special findings, to wit:

“ 1. Could the plaintiff have avoided the accident in question by the exercise of ordinary care and caution for his own safety immediately before and at the time of the happening of the same ? Yes.
2. At the time of the accident was the plaintiff upon the premises of the defendants by their invitation, expressed or implied ? • Yes.”

We have carefully read and considered the evidence in the case, and are of opinion that the first special finding of the jury is sustained by the proof. This being so, the learned trial judge might well, under the statute, have rendered a judgment on the special finding, notwithstanding the general verdict. If the plaintiff might, by the exercise of ordinary care and caution immediately before and at the time of the happening of the accident, have avoided it, the law is well settled that there vras no right of recovery. The general verdict in his favor is absolutely inconsistent with the special finding, and therefore can not avail him.

Complaint is also made that the court refused an instruction for the plaintiff, relating to the question of damages. If there was an error in this regard, it was an error without prejudice, since there was no right of recovery of any damages.

Complaint is also made that the court instructed the jury on behalf of the defendants, that the plaintiff was, at most, a mere licensee on defendant’s premises. This too, if error, is without prejudice, both because the plaintiff ivas not entitled to recover, under the jury’s special verdict, and because the jury could have reached no other conclusion under the evidence in the case.

It is said that there was error in the admission in evidence of certain photographs, but we think the claim is untenable. It was shown that the photographs were a correct representation of the premises where the accident happened, except that snow was on the ground at the time they Avere taken, some three weeks or a month after the accident. We think they were properly admitted. E. E.

Co. v. Wilson, 189 111. 89.

There being no reversible error in the record, the judgment of the Superior Court is affirmed.


author: Hr. Jitstioe Sears

text:
    William J. Laurence v. Thur Balch, Executor, etc.
    1. Wills — Failing to Provide Anything for a Surviving Husband.— The fact that a wife dies leaving a will in which she fails to provide anything for her surviving husband, merely operates to nullify the will to the extent of the legal right of the husband, which is to have one-third of the personal property after paying the debts of the estate and the costs of administration.
    Petition in Probate. — Error to the Circuit Court of Cook County; the Hon. Charles G-. Neely, Judge, presiding. Heard in this court at the October term, 1901.
    Affirmed.
    Opinion filed November 7, 1901.
    Statement. — Laura Jane Laurence died testate in Cook County on May 18,1895, leaving William J. Laurence, the plaintiff in error, as her surviving husband, and no child or children or descendants of a child or children. Deceased left a will in which she disposed of her entire estate and made no provision for her surviving husband. The will was probated, and Thur Balch, the defendant in error, was appointed executor. The entire estate left by deceased consisted oí personalty. The appraisement amounted to $97.54.
    Testatrix left no debts except a small amount incurred during her last sickness. On Hay 20, 1896, plaintiff in error, William J. Laurence, the surviving husband, filed his petition and supplemental petition in the Probate Court, offering to pay all debts and costs against said estate, and asking to have said property preserved in kind and delivered to him-as sole heir of the estate. Defendant in error, Thur Balch, executor, filed his petition, asking for an order to sell the personal property of the estate.
    The case was heard in the Probate Court and that court-denied the petition of plaintiff in error and held that the surviving husband was entitled to one-third of the estate only, and ordered the property sold. From this order plaintiff in error appealed to the Circuit Court. In the Circuit Court the cause was heard, and that court also denied the petition of plaintiff in error and held that as surviving husband he was entitled to one-third of his deceased wife’s estate and ordered that on final settlement of the estate the executor should pay to the surviving husband one-third of the estate remaining after paying debts and costs. This writ of error is prosecuted to review that order of the Circuit Court.
    J. C. Essiok, attorney for plaintiff in error.
    Wm. Garnett, Jr., attorney for defendant in error.
   Hr. Jitstioe Sears

delivered the opinion of the court. The only question presented upon this record is as to whether, when a wife dies testate, leaving no child or descendant of child, and having made no provision whatever in her will for her surviving husband, the latter takes all of the personal estate of the testatrix, as in case of intestacy, or only one-third of the personal estate.

In other words, is the estate of the testatrix in such case to be treated wholly as an intestate estate in determining the rights of the surviving husband, or is the will to be treated as inoperative only to the extent that it can not and does not deprive the surviving husband of the right which the law gives him in such case to one-third of the personal estate of his deceased wife %

We are of opinion that, there being a will, the estate can not be treated as an intestate estate, and that the effect of failing to provide for the surviving husband merely operates to nullify the will to the extent of the legal right of the husband, which is here a right to one-third of the personal estate.

By section 10 of chapter 41, R. S., it is provided that “ Any devise of land or estate therein, or any other provision made by the will of a deceased husband or wife for a surviving wife or husband, shall, unless otherwise expressed in the will, bar the dower of such survivor in the lands of the deceased, unless such survivor shall elect to and does renounce the benefit of such devise or other provision, in which case he or she shall be entitled to dower in the lands and to one-third of the personal estate after the payment of all debts.”

It is now contended by the learned counsel for appellant that while under the terms of this statute, if there had been the slightest provision for the surviving husband, which provision was renounced by him, the share of the personal estate to which he would be entitled by the law, would be one-third; yet because this will made no provision whatever for him, he may therefore take as bis legal share of the estate all of the personal property. This contention is based upon the hypothesis that when the will is thus inoperative to cut off the rights of the surviving husband, the estate is to be treated as intestate, and by the statute of descents the surviving husband would, in the lack of child or descendant of child, take all the personalty. Some apparent support for this contention is found in the language of the decision in the case In re Taylor, 55 Ill. 252. In that case the will of the husband made no provision whatever for the surviving wife, and the court, in holding that the will was inoperative to cut off her legal rights, said: “In what manner could the widow be deprived of these rights ? By such a devise or bequest to her by her husband’s last will as sh'e is willing to accept and does accept. But the husband makes a will and devises nothing to her; he declares in express terms he will not devise or bequeath anything to her; what, then, is the condition of the widow ? The answer is obvious. He has not taken away, as he could not take away, without her consent, her legal rights, her thirds, and the specific property must remain to her, and as to her, he must be deemed intestate.” From this statement, that in such event, “ as to' her he must be deemed intestate,” counsel for appellant seek to draw the conclusion that the ,estate is to be distributed as provided by the statute of descents, as though there were no will. We think that a careful reading of the whole decision will disclose that it was the intention of the Supreme Court to hold only that in the case presented the will was inoperative and the estate was to be treated as intestate, that is, out of .the operation of the will, to the extent of the legal rights of the wife to her thirds, and to no other or further extent. In the same decision the court said:

“We do not go too far when we say that it has become a sort of common law in this State, tliat this support shall be, ¿ in all cases,’ one-third of the husband’s real estate for life, and one-third of the personal estate forever, which shall remain after the payment of debts, unless the husband shall by his last will and testament make some devise or bequest to her which she is willing to accept. * * * We therefore hold, where a husband makes a will, but makes no devise or bequest to his wife, his estate, as to her, is intestate to the extent of her legal claims, and that under our law it is not in the power of the husband so to dispose of his estate as to deprive his widow of the' third of the personal property remaining after the payment of his debts; and that there is one-third of the realty beyond his disposal by will, unless a devise or bequest to the wife be made therein, which she is willing to and does accept. This court in Lessley v. Lessley, 44 Ill. 527, in discussing the right of election of "the widow, as given her by the dower act, said that right was based upon the ground that the wife has an interest in the estate of her husband* of which he can not deprive her by will or otherwise, without her consent. What interest can it be, other than her thirds ? ”

From this language it is, we think, apparent that it is only to the extent of the widow’s or surviving husband’s dower in the land and right of thirds in personal estate, that the will is to be disregarded or the estate to be treated as intestate. If the construction put upon the language of the decision by counsel were correct, then the disposition of the cause by the Supreme Court was at variance with this announcement of the decision, for the right of the widow was determined by the decision to be a right to one-third only of the personalty, although the statute of distributions and descents then in force gave, as now, in case of intestacy without child or descendant of a child, the whole of the personal estate to the widow.

It would be an incredible condition of our law that if the husband left the slightest bequest to the widow, she could only by renouncing take one-third of the personalty, while if he left her nothing at all she might take the whole of the personalty.

The decision of the Supreme Court in Cribben v. Cribben, 136 Ill. 609, makes it very clear that the construction sought to be put upon the decision in the Taylor case by counsel for appellant is incorrect. The court said in that case:

“ Manifestly that rule can give no support to the proposition here laid down, because, waiving all controversy as to whether the bequest in question is precisely the same estate Richard Cribben would have taken in his deceased wife’s estate if she had died intestate, it is an admitted fact that she did dispose of-her estate, both real and personal, by will, and therefore the statute of descents has no application, and hence her husband could take nothing by descent except by renouncing the will, as provided in sections 10 and IF of the dower act, and in that way onlv, could he take one-third of the personal estate of his deceased wife. She could dispose of her estate as she pleased. (Statute of Wills, Sec. 1.) He could only defeat her will by successfully contesting it, or by renouncing its provisions in his favor, and thereby preserve his right to dower in her real estate, and to one-third of her personal estate after the payment of her debts.”

There is no controversy between the litigants, but that under the law appellant was entitled either to one-third or to the whole of the personal estate. It is now, however, contended by the learned counsel for appellee, who assigns cross-error in this behalf, that because the petition of appellant in the Probate Court set up claim to the whole of the personal estate, therefore no judgment could properly result for any less, i. <?., for one-third of such estate.

We discover no merit in this contention. We are of opinion that the Probate Court and the Circuit Court were right in holding that appellant was entitled to one-third and to no more of the personal estate of his deceased wife.

The judgment is affirmed.