author: Mr. Justice Dickey

text:
    The People ex rel. Daniel W. Miller v. John Lee.

      Filed at Springfield November 17, 1884.

    1. Taxation by cities and villages—as to the mode of levying taxes, and the prerequisites thereto—the act of 1877 construed. It was the intention of the legislature, in the act of May 23, 1877, to require incorporated Tillages and towns, as well as cities, to follow a mode of assessment and collection which would limit the sum to he assessed and collected so as not to exceed the amount before that time specifically appropriated for particular purposes; and to that end such act required the annual appropriations to be first made, and their amount ascertained, and then that the levy and assessment should be made by ordinance, for the amount so ascertained. And this is not changed by the act of May 28, 1879.
    2. Where the only attempt made to levy and collect village taxes for the year 1882, was the making and delivery by the village clerk to the county clerk, of a certificate, in substance as follows: “County clerk, B. county: At a meeting of the board of trustees of the town of M. S., county of B., and State of Illinois, a tax of seventy-five cents on the hundred dollars was levied to meet expenses of town. C. D., town clerk, ”—and no appropriation ordinance was passed, or ordinance levying the tax, it was held, that such taxes were not lawfully levied, and that judgment against lots for such tax was properly refused. The failure to pass the necessary ordinance in such case is not a merely formal defect.
    3. The act of May 23, 1877, relating to municipal taxes, requires the assessment and collection of such taxes, in all cases, to be in the manner provided for in article 8 of the general Incorporation law, which is by an ordinance fixing the appropriations and levying the amount, and certifying a copy thereof to the county clerk; and without observing these prerequisites, the tax levied will be invalid.
    4. Same—fixing amount of appropriations—as to the mode or form— and the matter of publication. An ordinance of a city, town or village, fixing the amount of all appropriations, and declaring the same as the amount of taxes to be raised for any given year, can not be taken as a by-law or permanent local regulation; nor is its publication essential before a certified copy thereof can be fitly filed with the county clerk. It would seem to be all-sufficient to constitute such ordinance, that the board of trustees of the town should, by resolution, or by any other proceeding entered upon their record, declare the ascertained amount of all appropriations, and indicate their determination that such sum shall be levied and assessed upon the taxable property.
    5. Evidence—certified copies from official records—and certifying, generally, as to what record contains. Public officers having lawful custody, as such, of books, records or journals, may authenticate, by certificate, a copy of any extract from such record or journal; and by the rules of the common law, such certificate is competent evidence that the copy is correct, and such copy is evidence of the contents of the record. But such officer, unless authorized so to do by statute, can not lawfully, by strict law, certify, generally, to any fact as shown by his records, or to any conclusion he may draw from an inspection of the record.
    6. So where a village charter declares that the board of trustees shall “require their clerk to keep a fair journal and record of all their proceedings * * * in a book provided for that purpose, ” the adoption and contents of an ordinance directing the levy of a certain amount of taxes, can not be shown by the town clerk’s certificate that such board has required so many cents on the hundred dollars value of property in the town to be levied and collected. In such case, the best evidence of the acts and proceedings of the trustees must consist of the record thereof in the book kept by the clerk. To make a certified copy of entries in such book admissible in evidence, the clerk’s certificate should show that it is a true copy of the originals, as entered in such record.
    Appeal from the County Court of Brown county; the Hon. Thomas J. Russell, Judge, presiding.

      This was an application, made at the May term, 1888, of the county court of Brown county, by the county collector of that county, for judgment against certain town lots and lands of appellee, lying within the incorporated town of Mound Station, for certain delinquent municipal taxes of that town for the year 1882. Appellee interposed objections to the application, and the case was submitted to the county court upon the following admissions as to the facts:
    Appellee admitted that the town was incorporated and organized in 1862, under the general law of 1845, for the incorporation of towns and villages. Appellant admitted “the only effort or attempt made to levy or assess any taxes in and for the town of Mound Station, was by and in the manner specified in objection No. 2, filed” by appellee, which objection alleged that “the only authority, and only way, mode or manner in or by which said supposed taxes were levied or extended, was by and in pursuance of the delivery by the clerk of the board of trustees of said town, to the 'county clerk of said county, ” of a paper or document, in the words and figures following, to-wit:
    “Mound Station, August 3, 1882.

      “County Cleric of Brown County:

    “At a meeting of the board of trustees of the town of Mound Station, county of Brown, and State of Illinois, a tax of seventy-five cents on the hundred dollars was levied, to meet expenses of town.
    Wm. N. Mumford, Town Clerk.”
    Appellant also admitted that the board of trustees “did not, by ordinance, levy, or in any way whatever indicate or specify, the amount of money they desired or intended to be raised by the supposed levy or imposition of said alleged taxes, and that the said board of trustees did not levy or impose the supposed taxes by ordinance;” and “no copy of any ordinance levying or attempting, or purporting to levy, said supposed taxes,' or any part thereof, was ever transmitted, presented or delivered to or filed with said county clerk.” No other proof was offered, save the delinquent list, showing on its face the taxes in question as delinquent, in a column headed “corporation tax, ” in lines showing the lands and lots in question to lie within the limits of the town of Mound Station.
    The county court refused to enter judgment for these taxes, and sustained the objections thereto, founded upon the above facts. This is an appeal by the county collector from that judgment.
    Messrs. Irwin & Dobbin, and Mr. J. J. McDannold, for the appellant.
    Mr. W. L. Vandeventer, for the appellee.
   Mr. Justice Dickey

delivered the opinion of the Court:

By an act approved May 23, 1877, it was provided “that all cities, villages and incorporated towns in this State, whether organized under the general law or special charter, shall assess and collect their taxes in the manner provided for in article (8) eight of the act entitled ‘An act to provide for the incorporation of cities and villages, ’ approved April 10, 1872, and in the manner provided for in the general revenue laws of the State; and all acts and parts of acts inconsistent with the provisions of this act are hereby repealed.” The act of April 10, 1872, (mentioned in the act of May 23, 1877,) required the board of trustees of villages to ascertain the total amount of appropriations for all corporate purposes, legally made, and to be collected from the tax levy of each fiscal year, and by ordinance to levy and assess such amount so ascertained, upon the real and personal property within the village, subject to taxation, as the same is assessed for State and county purposes for the current year; and that a certified copy of such ordinance should be filed with the county clerk of the proper county, whose duty it was made by the act to ascertain the rate per cent which, upon the total valuation of all property subject to taxation in the village, as assessed and equalized for State and county purposes, will produce a net amount not less than the amount so directed to be levied and assessed, and to extend such tax in a separate column, upon the book or books of the collector of State and county taxes. The general Revenue law (mentioned in the act of May 23, 1877,) provided as follows, in section 122: “The proper authorities of towns, townships, districts and incorporated cities, towns and villages, collecting taxes under the provisions of this act, shall, annually, * * * certify to the county clerk the several amounts which they severally require, to be raised by taxation.”

It is contended by appellant that the taxes in question were in this case certified to the county clerk, in compliance with section 122 of the general Revenue law, and by a fair construction of the act of May 23, 1877, it was not necessary to comply with the provisions of article 8 of the act relating to cities and villages,—and hence it is not required of an incorporated town that the sum to be certified shall be limited to the amount of appropriations made previously, by ordinance. The contention in substance is, that the act of May 23, 1877, should be construed as though it said the several municipalities should assess and collect their taxes in the manner provided for in article 8, or in the manner provided for in the general revenue laws. We find no warrant for this construction. The language requires the assessment and collection to be, in all cases, “in the manner provided for in article 8, * * * and in the manner provided for in the general revenue laws.” It is no doubt true, that where the sense and purpose of a statute demand it, the conjunction “and” may be construed as though it were written “or;” but in the absence of some such necessity, the words of a statute are not to be so changed.

The contention is, that this incorporated town might lawfully assess and collect taxes, either by merely complying with the general Revenue law, or by following the provisions of article 8,—that either is sufficient, and both are not required. We can not approve this position. In Binkert v. Jansen et al. 94 Ill. 292, this court, speaking of the act of 1877, said: “It is obvious it was the intention of the legislature to provide a uniform mode for assessing and collecting municipal taxes. ” In Weber v. Traubel et al. 95 Ill. 427, (referring to what was thus said in Binkert v. Jansen et al.) this court said: “We are entirely satisfied with the correctness of the views there expressed. ” And again, in Sparland v. Barnes et al. 98 Ill. 597, we said: “We held in Binkert v. Jansen, and in Weber v. Traubel, that the only object of the act of 1877 was to provide a uniform system for the assessment and collection of taxes in towns and cities, without regard to whether they were incorporated under special charters or the general Incorporation law. ” If there be two modes provided, as contended by appellant, either of which will answer, there surely is not a “uniform mode” established, or a “uniform system” provided. It was obviously the intention of the legislature, in the act of May 23, 1877, to require villages and incorporated towns, as well as cities, to follow a mode of assessment and collections which would limit the amount to be assessed and collected, so as not to exceed the amount before that time specifically appropriated for particular purposes, and to that end required the annual appropriations to be first made, and their amount ascertained, and that then the levy and assessment should be made by ordinance, for the amount so ascertained.

But it is suggested that if compliance with article 8, in this regard, be required, it was wholly unnecessary to require a compliance with the general revenue laws, inasmuch as article 8 requires not only the amount to be certified to the county clerk, but specifies the mode in which the same shall be certified. It may be true that the provisions of- article 8 of the City act of 1872 cover all the requirements in this regard found in section 122 of the general revenue laws, and is more specific in its requirements in that regard; but it must be remembered that there are other provisions of the general revenue laws in relation to the collection of taxes, and the act of 1877 under consideration does not confine its requirements to section 122 of the general revenue laws. The manner of assessing and collecting is to follow article 8 of the act relating to cities and villages, and all the provisions of the general revenue laws bearing upon the mode of assessing and collecting taxes found in the general revenue laws. It is enough that the provisions of article 8 and section 122 are not incompatible with each 'other. They both require the amount to be raised by taxation to be certified to the county clerk, and article 8 points out, specifically, the manner in which such certifying shall be done.

It is said the collection of a tax is not to be avoided on account of a want of the exact form pointed out in the statute. Matters of mere form are not to be regarded; but the provisions of article 8 in the City act, intended to limit the net amount to be raised to the amount of previous appropriations, are matters of substance and not of form.

Some comments are made as to the meaning of the word “ordinance, ” and it is suggested that ordinances are by-laws or permanent local regulations, and are not valid unless published, etc. An ordinance for the purpose of fixing the amount of all appropriations, and declaring the same as the amount of taxes to be raised for any given year, it is not conceived is a by-law or a permanent local regulation, or that its publication is essential before a certified copy thereof can fitly be filed with the county clerk. The word “ordinance,” in this regard, we think is not used in that sense in this statute. It would seem to be all-sufficient to constitute an ordinance in the sense of this statute, that the board of trustees should, by resolution, or by any other proceeding entered upon their journal or record, declare the ascertained amount of all appropriations, and indicate their determination that such amount shall be levied and assessed upon the taxable property within the town.

Counsel do not agree in their construction of the language of the admissions upon which the county court rendered judgment in this case. Counsel for appellant contend that it is admitted that at a' meeting of the board of trustees a tax of seventy-five cents on the hundred dollars was levied by said board, to meet the expenses of the town. , Counsel for appellee insists that it is admitted that no attempt was made by the board to levy any tax, or to fix any. amount to be levied. The language of the admission in this regard is, that “the only authority, and only way, mode or manner in or by which said supposed taxes were levied or extended, was by and in pursuance of the delivery by the clerk of the board of trustees of said town, to the county clerk,” of the certificate set out in the record; and it is also admitted that “the board of trustees did not, by ordinance, levy, or in any way whatever indicate or specify, the amount of money they * * * intended to be raised by the supposed levy or imposition of said alleged taxes, and that the said board of trustees did not levy or impose the supposed taxes by ordinance. ” If we are right in our suggestion as to what would constitute an ordinance in this respect, within the meaning of the statute, it follows that the action of the town clerk in making and delivering this certificate was the first and only foundation upon which the whole attempt to collect these taxes rests, and that the trustees did not, in any way, fix the amount to be raised. The act under which this town of Mound Station was organized, declares that the board shall “require their clerk to keep a fair journal and record of all their proceedings, * * * in a book provided for that purpose.” It is plain that the best evidence of the proceedings of the trustees must consist of the record of the same in the book kept by the clerk. It is also plain that such trustees could not lawfully impose any tax upon the property within such town, except by proceedings reduced to writing, and recorded in that town record. The form of such proceedings may not be important. It may not be necessary that the same, should begin with the words, “Be it ordained, ” but it is essential to the valid imposition of such a tax that a written entry should be made in the record of the proceedings of the board, showing the determination of the board that a tax of a given amount should be collected. Not only does the certificate of the clerk fail to show the contents, or even the existence, of such an entry, but the admission in the case is, that no such thing was done by ordinance,—admits that no such entry was ever made, or even that any such certificate was ever directed to be made. The admission is, that the only effort made to 'levy and assess this tax was by and in pursuance of the delivery to the county clerk of a certificate of the town clerk, dated August 3, 1882, and saying that at a meeting of the trustees a tax of seventy-five cents on the hundred dollars was levied, etc. There is no admission that the certificate is true. On the contrary, the admission that no effort was ever made to levy these taxes except under and by the delivery of this certificate, and that there was no ordinance, necessarily covers the proposition that no such effort was made and entered on their books by the trustees before the certificate was made.

It is suggested, in substance, that the admission of the delivery of the certificate shows such action by the trustees, because the certificate says the tax was levied by them. There would seem force in this suggestion, if, in absence of the admission that there was no ordinance, such a certificate of the town clerk were required by law, or authorized by law, or was by law competent evidence of the truth of the matter therein stated. But this is not the case. Public officers having lawful custody, as such, of books, records or journals, may authenticate, by certificate, a copy of any extract from such journal or record, and by the rules of the common law such certificate is competent evidence that the copy is correct, and such copy is evidence of the contents of the record; but such officer, unless authorized so to do by statute, can not lawfully, by strict law, certify, generally, to any fact as shown by his records, or to any conclusion he may draw from an inspection of the record. In the matter under consideration, the statute gives no such authority, but, as we have seen, specifies that the mode of certifying to the county clerk the amount of tax to be raised, shall be by filing a copy of the ordinance fixing the amount levied and assessed, and from this the county clerk must extend the tax. How strict a compliance with this statute is necessary to give prima facie authority to extend the tax, we do not decide; but this certificate surely does not comply with the requirements of the statute, and we have an admission that the trustees did not indicate the amount by ordinance,—which, as we have seen, means that this was not done by resolution, or any other proceeding entered upon their journal. In such case we can not say the defect is merely that of form. If such a proceeding was really had by the trustees, we do not say that to sustain the levy the same might not be entered in the town record even-after the tax was extended; but nothing of this kind appears in this case.

It seems to be thought that the amendment of section 1, of article 8, in the act relating to cities and villages, made May 28, 1879, (Sess. Laws, 1879, page 66,) has in some way amended this act of 1877, in this respect. We can not see that this amendment has in any way affected the act of 1877, so far as it affects this question.

The judgment in this case is therefore affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon Mr. Justice Mulkey,

license: Public Domain

text:
    Luther Laflin Mills, State’s Attorney, v. Julia B. Newberry et al.

      Filed at Ottawa January 22, 1885.

    1. Will—legacy on a condition precedent, after refusal to. perform. Where a legacy is given upon a condition precedent, not performed, the legacy falls into the residue; and when a legacy lapses, there being no residuary bequest, the subject matter of the legacy will go to the next of kin as estate undisposed of under the will.
    2. Same—whether creating a residuary bequest. A devise was in these words: “In the event I die unmarried, leaving my mother surviving, I devise and bequeath to her all my property, both real and personal, of every kind and nature, upon the express condition, however, that she devise, by will to be executed before receiving this bequest, so much thereof as shall remain undisposed of or unspent at the time of her decease, to such charitable institution for women, in said city of Chicago, as she may select:” Held, that the remainder spoken of was by no means tantamount to a residuary clause, that will embrace all not disposed of to others by the will, but that it is something which may never be, and that if it ever arises it will only be upon the decease of the devisee named.
    3. Same—acceleration of a residuary devise—¿when it takes effect in possession. Where a testatrix devised all her estate to her mother, upon the express condition the latter should devise, by will to be executed before taking the bequest, what portion thereof might remain undisposed of or unspent at her death, to some charitable institution in a certain city, and the mother refused to make any such devise by will, it was held, that the refusal by the mother to execute the will in no way interrupted her use and enjoyment of the estate during her life, as the only heir, and that which was to go over to charity was not that which remained undisposed of and unspent at the time of her refusal to perform the condition or to take under the will, but what remained unspent by her at her death,—and hence there was no acceleration as to charity taking effect in possession.

      4. There being no residuary clause in the will, upon non-performance of the condition precedent the property passed to the mother as the next of kin. The rule of acceleration is applied in supposed fulfillment of the testator’s intention, and where it appears that it was intended that the mother should enjoy the estate for life, it matters not whether she does so as heir or as devisee.
    5. Same—creation of a trust by request, etc., of devisee, to dispose of for another. Where a bequest is accompanied by words expressing a command, recommendation, entreaty, wish or hope, on the part of the testator, that the donee will dispose of the property devised, in favor of another, a trust will be created,—first, if the words, on the whole, are sufficiently imperative; second, if the subject be sufficiently certain; and third, if the object be also sufficiently certain.
    6. Same—construction in favor of charities—recommendatory words. A devise or bequest for a public charitable use is favored in law, and a will giving the same should receive a more liberal construction than will be allowed in gifts to individuals, and courts of equity have gone great lengths by creating implied or constructive trusts from mere recommendation and precatory words of testators; but in modern times the disposition is to give the words used their natural and ordinary sense, unless it is clear -they are used in a peremptory sense.
    7. Same—words construed as peremptory, and as creating a trust for a charity. A devise by a daughter to her mother of all her estate, “upon the express condition, however, that she devise, by will to be executed before receiving this bequest, so much thereof as shall remain undisposed of or unspent at the time of her decease, to such charitable institution for women in," etc., as she may select, was held sufficiently imperative to create a constructive trust in favor of the charity in respect to such property as might be the subject of a trust, and that the object of the trust was sufficiently certain.
    8. Same—trust created, not defeated by the devisee failing to execute testator’s wish. Where a devise is made in favor of a particular person, with a general intention in favor of a class to be selected by such person, whose duty it is made to execute the power given, the court will not permit the object of the power to suffer by the neglect or refusal of the donee, but will fasten upon the property a trust for the benefit of the class, or carry into effect the testator’s general intention. The failure of the particular mode by which the charity is to be effected will not defeat the charity, but equity will substitute another mode to give it effect.
    9. Same—devise to one with a trust for a charity—subject of gift must not be uncertain. To constitute a valid trust by a devise, three circumstances must concur: sufficient words to raise it, a definite subject, and a certain or ascertained object. If the subject of the charity is not certain, no trust arises. If the words by which the trust is expressed or from which it may be implied, give the first taker the power of withdrawing any part of the subject from the object of the wish or request, or of applying it to his own use, the subject can not be considered certain, and a court of equity will not create a trust.
    10. Where a daughter devised all her estate to her mother upon the condition the latter should devise, by her will, before taking anything under the bequest, so much thereof as she might not dispose of or spend during her life, to a charitable institution, the uncertainty as to the estate that might remain at the mother’s death was such as that no trust could be implied in favor of the charity, and a court of chancery could not declare any trust, at least during the first taker’s life.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Julia Bosa Newberry died testate on April 4,1876, unmarried and without issue, leaving her surviving, her mother, Julia Butler Newberry, who is the widow of Walter L. New-berry, deceased. Julia Butler Newberry is the sole heir at law and next of kin of said Julia Bosa. The last will of Julia Bosa was admitted to probate in Cook county, Illinois, on April 16, 1876, and letters testamentary issued to E. W. Blatchford. Her estate consisted of bonds and mortgage securities to the amount of about $102,000, and a piece of real estate of little value. The executor administered the estate, and being ready to deliver over the remaining assets, (over $100,000,) Mrs. Newberry, the mother of the testatrix, the devisee named in the will, applied to the probate court for an order that the executor deliver the same to her. This the court refused to order, unless she should first comply with the condition mentioned in the will. Mrs. Newberry refused to do so, and filed a declaration to that effect in the probate court, and thereupon demanded the estate as the only heir at law of her daughter. The court then adjudged the estate to be intestate estate, and ordered the executor to deliver the same to Mrs. Newberry as the heir at law, which was done September 6, 1879.
    The will of Julia B. Newberry is in substance as follows:
    “First—In event I die unmarried, leaving my mother surviving, I devise and bequeath to her all my property, both real and personal, of every kind and nature, upon the express condition, however, that she devise, by will to be executed before receiving this bequest, so much thereof as shall remain undisposed of or unspent at the time of her decease, to such charitable institution for women, in said city of Chicago, as she may select.”

      The second clause devises her property to her mother and husband, if she should leave both her surviving, in equal shares, upon a like “express condition. ” The third clause devises the property to her husband, if she should marry and leave him surviving, and no mother, upon the like “express condition. ” The fourth clause provides, if there is no surviving husband or mother, that all her estate, except jewelry, works of art, books and wearing apparel, be converted into money, and the income be used to establish a gallery of paintings and works of art in New York, Washington or Chicago, the preference to be given to Chicago. The excepted articles are devised to her children, if any; if none, to a Miss Tinkham.
    The situation at the time of the making of the will was, that Julia Rosa had the income from the estate of her father, Walter L. Newberry, deceased, then amounting to some $500,000, the principal of which was settled upon her children, if any; and Mrs. Newberry had some $300,000 personal property from said estate, and a dower estate therein.
    This bill was filed by the State’s attorney, on the relation of the Women’s Hospital of the State of Illinois, and the Chicago Hospital for Women and Children, praying that the defendants, Mrs. Newberry and the executor, be decreed to hold the property, and the income thereof, or some part thereof, in trust for the relators, as being the only institutions answering the charity intended by the testatrix, and for an account, and appointment of a trustee to control the property. Upon hearing, the circuit court dismissed the bill for want of equity. The Appellate Court for the First District affirmed the judgment, and the relators appealed further to this court.
    Mr. Luther Laflin Mills, and Messrs. Rosenthal & Pence, for the appellant:
    Whether a condition will, of itself, constitute a devise or limitation over, we refer to Friedman v. Steiner, 107 Ill. 125;
      Brown v. Higgs, 8 Ves. 561; Burroughs v. Philcox, 5 M. & C. 67; Metcalf v. Farmington Parish, 128 Mass. 374; Lewin on Trusts, (2d Am. ed.) chap. 8, sec. 2, p. 167.
    The very language of the condition shows an intention to create a trust in favor of the charity. Hamlin v. Express Co. 107 Ill. 443; Friedman v. Steiner, id. 125.
    Charities are more highly favored in law than gifts to individuals. 2 Story’s Eq. Jur. 1165; Heuser v. Harris, 42 Ill. 425.
    Even if the life tenant had the absolute power of disposition, yet if anything remains unspent, that will go over, and not go to the heir of the first taker. Funk v. Eggleston, 92 Ill. 525; Crozier v. Hoyt, 97 id. 23; Markillie v. Ragland, 77 id. 98; Boyd v. Strahan, 36 id. 355; Siegwald v. Siegwald, 37 id. 431; Henderson v. Blackburn, 104 id. 227; Fairman v. Beal, 14 id. 244; Burnett v. Lester, 53 id. 333.
    Where a person having a power of disposition over property, manifests any intention in favor of another, the court will execute such intention through the medium of a trust. Lewin on Trusts, chap. 8, sec. 2; Marvin v. Keighly, 2 Ves. Sr. 000; Hills v. Nirly, 2 Atk. 605; 1 Jarman on Wills, 655; Redfield on Wills, secs. 21, 22.
    It seems to us perfectly clear, upon reason and authority, that when a life estate is vested in the first taker in personal property, the remainder is also vested in equity, by limitation, over the second taker, just as the remainder in real estate is vested in law in the second taker; and also, that a power of appointment or disposition in the first taker of the whole estate does not divest the second taker of such remainder until the exercise of such power, or until the contingency arises which is to divest it. Harrison v. Foreman, 5 Ves. 207; Bromhead v. Hunt, 2 Jac. & W. 462; Sturges v. Pearson, 4 Mad. 411; Skey v. Barnes, 3 Mer. 335.

      Messrs. Williams & Thompson, for the appellees :
    When a legacy is given on a condition precedent not performed, the legacy falls into the residue; and when a legacy lapses, there being no residuary bequest, it will go to the next of kin. 2 Redfield on Wills, 175.
    The uncertainty of what might remain at the death of the mother, renders the supposed trust in favor of the charity void. Winne v. Hawkins, 1 Bro. Ch. 179; Beachcraft v. Broome, 4 Tenn. 441; Attorney v. Hall, Fitz 314; Flint v. Warren, 15 Sim. 625.
    A bequest of “what shall remain or be left at the decease of the prior legatee, ” or of “what the legatee is possessed of at the time-of death, ” or of “what he does not want or does not spend, ” or of “what he can transfer, ” or “what he can save out of his yearly income, ” or of “what remains undisposed of,” or “is not disposed of by deed or will,” or “of the bulk of certain property, ” or a gift over of the whole legacy in case of the death of the prior legatee intestate, is void for uncertainty. 1 Jarman on Wills, *363; 2 Redfield on Wills, 391.
    To constitute a valid trust, undoubtedly three circumstances must concur: sufficient words to raise it, a definite subject, and a certain or ascertained object. Cruwys v. Colman, 9 Ves. 323; Bland v. Bland, 2 Cox, 349; Warren v. Bates, 94 Mass. 274; Knight v. Knight, 3 Beav. 179; Flint v. Hughes, 6 id. 342; Fox v. Fox, 27 id. 301.
    Mr. Edward S. Isham, for the appellee E. W. Blatchford.
    Mr. Francis Kernan, for the appellee Mrs. Newberry:
    No title to an interest in the property is given to or vested in the relators, or any charitable institution, by the will. If the condition is construed as a bequest or limitation over to any party, it is invalid. The law is well settled, that where, by a will, a devisee or legatee takes title to and has a right to dispose of or spend the property, a condition or limitation over to or for the benefit of another party is void. Such condition or limitation is inconsistent with and repugnant to the title and right of disposition vested in the first devisee or legatee. The condition in the will under consideration falls within this rule of law. 4 Kent’s Com. 270; Jackson v. Robbins, 16 Johns. 537; Jackson v. Bull, 10 id. 19; Ide v. Ide, 5 Mass. 500; Kimball v. Sullivan, 113 id. 345; Jones v. Bacon, 68 Maine, 34; Campbell v. Beaumont, 91 N. Y. Ct. of App. 464; Clark v. Leupp, 88 id. 228.
    The condition is a condition precedent. By the express terms of the will, performance of this condition by Mrs. New-berry is required before the estate, or any interest in it, vests by virtue of the will in any party. 2 Redfield on Wills, (3d ed.) p. 283, sec. 18, subs. 1-4, and p. 284, subs. 6-8, and eases cited; 1 Jarman on Wills, (4th Am. ed.) with Perkins’ notes, 683-685; 2 Williams on Executors, 1081.
    Mrs. Newberry having declined to perform this condition precedent, and the will containing no residuary clause, the entire property became intestate estate, and passed to the heirs and next of kin of the testatrix. 1 Jarman on Wills, p. 311, note 1, and cases cited; Prescott v. Prescott, 7 Metc. 141; 2 Redfield on Wills, (3d ed.) p. 175, sec. 31, and p; 176, sec. 34, and p. 284, subs. 8, and p. 286, subs. 10; Theobold on Wills, (2d ed. of 1880,) 400, and cases cited; Robinson v. Wheelwright, 21 Beav. 214; Edgerton v. Brownlow, 4 H. L. 1.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The contingency mentioned in the first clause of the will occurred, and there were none to take under the will other than Mrs. Newberry, the mother, and some charitable institution for women in Chicago. The condition of Mrs. Newberry taking under the will was, that she should, before receiving the bequest to her, execute a will devising, as mentioned, the undisposed or unspent part of the property. This condition we regard a condition precedent. Mrs. Newberry declined to execute the will and perforin the condition. She could then take nothing under the will. Where, then, did the property bequeathed' to her, go ? When a legacy is given upon a condition precedent not performed, the legacy falls into the residue; and where a legacy lapses, there being no residuary bequest, it will go to the next of kin as estate undisposed of under the will. 2 Redfield on Wills, 175, 176; Prescott v. Prescott, 7 Metc. 141.

It is insisted that there was, here, a residuary clause; that the whole estate was given to two parties—the mother, and charity; that the estate was to go, a certain portion to the mother, the remainder, “so much thereof as shall remain undisposed of and unspent, ” was to go to charity. That what shall remain, means the residuum, and charity is to .take the residuum. The remainder here spoken of is by no means tantamount to a residuary clause, which will embrace and carry all that is not disposed of to others by the will. It is a remainder which embraces but that which shall remain undisposed of or unspent at the time of the decease of Mrs. Newberry. It is something which may never be, and if it ever shall arise, it will only be upon such decease.

It is urged, again, that by the doctrine of acceleration, charity is immediately entitled to the whole of the estate,— such doctrine being, that if there is a gift to one person for life, and after-his death to another, if the first one is incapable of taking, or if he refuses to take, the remainder is accelerated. Although the ulterior devise, in terms, is not to take effect in possession until the decease of the prior devisee, if tenant for life, yet, in point of fact, it is to be read as a limitation of the remainder, to take effect in every event which removes the prior estate out of the way. Theobold on Construction of Wills, 450; 1 Jarman on Wills, (5th Am. ed.) 574; Blatchford v. Neivberry, 99 Ill. 11.

It is said the whole estate, here, was given to two parties, the mother and charity, in succession; that it was not intended, that any part of the estate should become intestate, or that the next of kin, as such, should receive anything, and that the intention was, that when the estate of one party ceased, that of the other shoul^. commence in possession; that such is the result, here, under the rule of acceleration, and that the court should ascertain the special object of charity, and.order the whole fund paid over at once by Mrs. Newberry to such object. What here stood in the way of anything going over to charity, was the enjoyment of this property by Mrs. Newberry, with the right of expending and disposing of it until the time of her decease. This prior estate has not been removed out of the way,—it has not gone or would not go over to any other person, but is in the rightful possession and use of Mrs. Newberry, with full capacity of spending and disposing of it. True, the enjoyment of the property by her is not under the will, as devisee, but under the law, as next of kin. But what difference should that make ? The technicality of how the mother enjoyed,—whether as devisee or next of kin,—the testatrix could have cared nothing for. The thing substantial was the use and enjoyment of the property for life. As next of kin, Mrs. Newberry enjoys the use of the property, and the right of expending and disposing of it, just the same as she would have done had she executed the will as required by the first clause. All that has happened is., that Mrs. Newberry has refused to perform the condition,—to execute the will. But that in no way interrupts her use and enjoyment of the property. What was to go over to charity was not that which remained undisposed of or unspent at the time of refusing to perform the condition or to take under the will, but it was so much as should remain undisposed of or unspent at the time of Mrs. Newberry’s decease. She was to have the use and enjoyment of the property, with the power of disposing, of it, so long as she lived. The refusing to perform the condition can not be taken as the equivalent of- her death. Had anything occurred to cause inability afterward to make any use of the property and to expend or dispose of it, that, with some reason, might be urged as such equivalent, and as accelerating the enjoyment by the ulterior object of bounty. The rule of acceleration is applied in supposed fulfillment of the testator’s intention. The paramount intention appearing in this will is, that the mother should have the possession, use, enjoyment and disjiosition of the whole of this property so long as she lived. The interest of charity was quite subordinate in the testatrix’s consideration, and it was but the undisposed of and unspent remnant remaining at the end of life. It would be doing the greatest violence to the intention disclosed in the will,'to'hand all the property over to charity upon the mother declining to execute the will mentioned in the condition, and in our opinion there is no legal principle which so requires. There being no residuary clause in the will, upon non-performance of the condition precedent the property went over to the next of kin, and the executor rightly distributed the same to Mrs. Newberry, as such next of kin.

Taking this as being so, it is then contended for appellant, that it was but the legal title to the property which went to Mrs. Newberry, and that there was a trust in favor of charity attached to the property in her hands, created by the words of the condition in the first clause. We agree, in the main, with what is urged by appellant’s counsel upon this branch of the cause, except in its application in this case. It has been established from a series of eases, that where a bequest, accompanied by words expressing a command, recommendation, entreaty, wish or hope, on the part of a testator, that the donee will dispose of the property in favor of another, a trust will be created,—first, if the words, on the whole, are sufficiently imperative; second, if the subject be sufficiently certain; and third, if the object be also sufficiently certain. (Hill on Trustees, 110.) Such a charity as here, is favored in law, and will receive a more liberal construction than will be allowed in gifts to individuals. As is said by Story: “In the interpretation of the language of wills, courts of equity have gone great lengths, by creating implied or constructive trusts from mere recommendatory and precatory words of the testator. ” (2 Story’s Eq. Jur. sec. 1068.) But as said further, in section 1069 : “In more modern times a strong disposition has been indicated not to extend this doctrine of recommendatory trusts, but, as far as the authorities will allow, to give to the words of wills their natural and ordinary sense, unless it is clear that they are designed to be used in a peremptory sense.” There is in this case more than the expression of mere recommendation, confidence, hope, wish and desire that the remainder left of the property should go to charity. It is made an express condition that the devisee, before receiving the bequest to her, shall devise, by will to be executed by her, such remainder to charity. The language is of a peremptory and imperative nature, expressive of the testatrix’s intention which she wills to be performed, answering the description of a will, as legally defined: “The legal declaration of a man’s intentions, which he wills to be performed after his death. ” 2 Blackstone’s Com. 499.

We think the language of this condition fully sufficient to create a trust with respect to such property as may be the subject of a trust. And we do not feel any difficulty in respect to uncertainty of the object of the bounty to charity, or in respect to the necessity of a will from Mrs. Newberry in order to carry the subject of the bounty. Although the condition reads that Mrs. Newberry should devise, hy will, the undisposed of or unspent part of the property to such charitable institution for women, in the city of Chicago, as she might select, we do not deem it of the essence that Mrs. Newberry should have made the will, or the selection. There is here expressed a general intention in favor of charities for women, in Chicago, and a power given to Mrs. Newberry to select the particular object of charity; but her failure to make the selection the court will not allow to disappoint the beneficiaries, but will carry into effect the general intention in favor of the class, and will itself execute the power to select the particular object of charity. As observed by Mr. Perry, in his work on Trusts, (vol. 1, sec. 250,) Lord Cottenham, in Burroughs v. Philcox, 5 M. & C. 72, stated the general rule deduced from the eases, as follows: “When there appears a general intention in favor of a class, and a particular intention in favor of individuals of a class to be selected by another person, and the particular intention fails from that selection not being made, the court will carry into effect the general intention in favor of the class. When such an intention appears, the case arises as stated by Lord Eldon in Broion v. Higgs, 8 Ves. 574, of the power being so given as to make it the duty of the donee to execute it; and in such case, the court will not permit the objects of the power to suffer by the negligence or conduct of the donee, but fastens upon the property a trust for their benefit. ” It was said by this court in Heuser v. Harris, 42 Ill. 435: “The opinions in the eases of Maggridge v. Thackwell, 7 Ves., and Mills v. Farmer, 1 Merrivale, were by Lord Eldon, and resulted in this, that if a testator has manifested a general intention to give to charity, the failure of the particular mode by which the charity is to be effected will not destroy the charity, for, the substantial intention being charity, equity will substitute another mode of devoting the property to charitable purposes, although the formal intention as to the mode can not be accomplished. ” And see 2 Story’s Eq. Jur. sec. 1167.

But an insuperable difficulty which we find to be in the way of the present proceeding, is the uncertainty as to the subject matter of the trust attempted to be asserted. The subject is, so much of the property as shall remain undisposed of or unspent at- the time of the decease of Mrs. Newberry. The property having been previously given to her absolutely, we construe the above as giving her the full power of expenditure and disposition of the property during her lifetime. What, then, is there to which a trust can now attach?— which a court of equity can now take hold of, and administer as trust estate ? Evidently nothing. It is not the whole property, nor is it any particular part of it, for it all must remain with Mrs. Newberry so long as she lives, for her to spend and dispose of. There may, or there may not, be something remaining úndisposed of or unspent by her, at the time of her decease. Whether anything at all will be so left, is now entirely uncertain. The authorities fully establish that the subject matter of the supposed trust must be certain. “To constitute a valid trust, undoubtedly three circumstances must concur: sufficient words to raise it, a definite subject, and a certain or ascertained object.” (Sir Wm. Grant, in Cruwys v. Colman, 9 Ves. 323.) “I do not lay it down that in a will a request may not amount to a legacy, but it should be limited to some certain thing or for some certain part of a thing, and not left absolutely to the pleasure of the person to whom the request is made. ” (Lord Hardwicks, in Bland v. Bland, 2 Cox, 355.) In the language of Story: “Wherever, therefore, the objects of the supposed recommendatory trusts are not certain or definite; wherever the property to which it is to attach is not certain or definite; wherever a clear discretion or choice to act, or not to act, is given; wherever the prior dispositions of the property import absolute and uncontrollable ownership,—in all such cases courts of equity will not create a trust from words of this character.” (2 Story’s Eq. Jur. sec. 1070.) The rule, which we believe to be amply supported by the authorities, is thus laid down in Hill on Trustees, 119: “But any words by which it is expressed, or from which it may be implied, that the first taker has the power of withdrawing any part of the subject from the object of the wish or request, or of applying it to his own use', will prevent the subject of the gift from being considered certain. ” See, also, Knight v. Knight, 3 Beav. 173; Howard v. Carusi, 109 U. S. 725; 2 Pomeroy’s Eq. Jur. sec. 1014—1017; Williams v. Worthington, 49 Md. 572.

We do not consider, as indicated in the earlier part of this opinion, that the uncertainty in the subject has been removed by the refusal of Mrs. Newberry to perform the condition.

It' is suggested that the true construction of the words, “remain undisposed of and unspent, ” means that the whole estate of the testatrix, Julia Rosa Newberry,—that which remained undisposed of and unspent by the testatrix,—should go over to charity upon the death of Mrs. Newberry, who should be held simply a trustee of the fund. We can not think this to be the correct construction, but that the clear meaning is, that it was the remnant of the property remaining “undisposed of and unspent” by Mrs. Newberry at the time of her decease, which was to go over'to charity.

We find that the condition in question fails in the condition of certainty as to the subject, essential to the creation of a trust, by the words used, and we hold, at least, that the present proceeding is premature, in there being no subject now existing to which a trust can attach, and in respect whereof the interference of a court of chancery can be called for or exercised.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.

Mr. Justice Mulkey,

separate opinion:

I concur in the conclusion reached in this case, and in most that is said in the opinion of the majority of the court, but not in all. In so far as the opinion seems to hold the testatrix’s intention in respect to the rights of the mother under the will is to be given effect just as though there had been no renouncement of it, and that for this purpose it is immaterial whether she takes under the will or by intestacy, I am unable to concur. This seems to me to be making the will speak and not speak, at the same time. The will may still be looked to for the purpose of determining whether, notwithstanding her renunciation, anything is given to charity, and if so, what it is. The intentions of the testatrix in respect to the mother are based upon the hypothesis that she would accept the provision made for her, as made; but this intention she has defeated by her renunciation. As I view the matter, when Mrs. Newberry renounced the will all her rights under it at once ceased, and her relation to the property bequeathed to her became precisely the same as if no bequest had been made to her at all. Her renunciation is just as fatal to and destructive of the testatrix’s intention and purposes in her behalf, as it is to the bequest itself. As next of kin to her deceased daughter, she takes the property without regard to any condition or provision in the will relating to her, and, as is conceded by all, with absolute power of sale and disposition for her own account. Such being the case, I see nothing to which a trust in favor of charity can now, or at any future time, attach. I can not, therefore, concur in the view which the majority opinion seems to hold, that if, upon Mrs. Newberry’s death, any of the property shall remain undisposed of, it will, under the will, belong to charity. All the authorities agree that a testamentary trust, to be valid, must be limited to some certain thing, and this certainty as to the subject of the trust must appear from the will itself when it first speaks,—namely, at the death of the testator. As is well said by Sir Wm. Grant, in Cruwys v. Colman, 9 Ves. 323, it can not be “left absolutely at the pleasure of the person to whom the bequest was made, ”— the very thing which was attempted to be done here. What is the subject of the trust in this case ? Is it the whole, half, tenth, hundredth or thousandth part of the property bequeathed to Mrs. Newberry, or is it anything at all ? It is conceded by the majority of the court that it may turn out to be nothing. Thus it is said: “It is something which may never be.” A gift to charity may well be postponed to a future day, or it may be made to depend upon some contingency that may, or may not, happen. But in all these cases the subject of the trust, whether it be land, money or other chattels, must be so definitely pointed out and described by the instrument creating the trust, that a court of equity may protect it and preserve it intact for the use and benefit of the objects of the gift.

In determining whether anything is given to charity in this case, I think, with the majority of the court, the will must be construed in the same manner it would be if the devise had been made to Mrs. Newberry unconditionally, giving her, as it did, an absolute power of user and disposition on her own account, and had then contained a provision directing her, by her last will and testament, to devise whatever might remain of the bequest to her, if anything, to charity, as indicated in the present will. Looking at the will in this light, it does seem to me there is no ground for controversy. The subject of the devise in this ease is personal property, with the exception, perhaps, of one piece of land lying in a sister State. So far as the land is concerned, the rule applicable to such a devise is well stated in 2 Jarman on Wills, (5th Am. ed.) page 528. It is there said: “A power of alienation is necessarily and inseparably incidental to an estate in fee. If, therefore, lands be devised to A and his heirs, upon condition that he shall not alien them, or charge them with any annuity, the condition is void.” And on the next page the author adds: “So, if lands be devised to A and his heirs, with a gift over if he die intestate or shall not part with the property in his lifetime, the gift over is repugnant and void. ” (See, also, vol. 1, page 653, where the same doctrine is laid down in strong and emphatic terms.) If such be the rule in respect to real property, no argument or authority is necessary to show that it applies with greater strictness to personal estate. While, in equity, a life estate may be given in money or other chattels whose use does not consist solely in their consumption, yet no rule of law is regarded more elementary or better settled than that any limitation over or condition affecting the right of user or disposition after an absolute and unqualified gift of personal property, whether in a will or deed, is repugnant and inconsistent with the gift itself, and is therefore void. Watkins v. Williams, 3 Mac. & Gord. *628; Ross v. Ross, 1 J. & W. 154; Cuthbert v. Peumer, Jac. 415; 2 Redfield on Wills, par. 19, sec. 24, chap. 3.

Without stopping to discuss what may be regarded as limitations or exceptions to the above general rule, as applicable to either real or personal property, I assert, with the utmost confidence, that no respectable authority has been or can be produced that takes the present case out of the general rule as above stated. The present case is but another of the many instances with which the books abound, where one, after having made an absolute gift of property, has attempted to control its future disposition or use,—a thing which the law does not allow, as has been held, perhaps, a thousand times.

I am therefore of opinion the so-called bequest to charity is ab initio inoperative and void, on both the grounds stated.

Mr. Justice Dickey : I think the subject of the attempted gift to charity is so uncertain as to render that provision void. I am also inclined to think the object of the attempted gift is not sufficiently certain to render the same effective. I think the heir takes the property free from the alleged trust for charity.


author: Mr. Justice Mulkey

text:
    John Mullin et al. v. Charles Spangenberg.

      Filed at Ottawa November 17, 1884.

    1. Instructions construed—as not properly defining offence alleged in plea. In an action of trespass against two police officers, for an assault and battery, the defendants pleaded son assault demesne; that the plaintiff had been guilty of a misdemeanor, (without stating what it was,) and that the defendants arrested him therefor, and that the plaintiff interfered with defendants, as police officers, in the discharge of their duties in conveying a person they had lawfully arrested, to the nearest police station. The court instructed the jury, that if they believed, from the evidence, that the plaintiff had not committed any offence alleged in the defendants’ pleas, and that both of the defendants concurred in laying hands on him and arresting him, then the jury are instructed that they should find both the defendants guilty, etc.: Held, that the instruction was not erroneous, in failing to state what would constitute the offence of resisting an officer, nor because of the use of the word “any” before the word “offence.” The sentence means the same as if the language had been, “ committed no one of the offences. ”
    2. Same—whether assuming a fact. An instruction that “if the jury believe, from the evidence, * * * that both of the defendants concurred in laying hands on him,” etc., is not subject to the objection that it assumes as a fact that the defendants did concur in the act.
    3. So an instruction that “if the jury believe, from the evidence, * * * that the defendants * * * were engaged in the common purpose of unlawfully arresting the plaintiff, ” is not faulty, as assuming the arrest was unlawful.
    4. Measure op damages—in trespass to the person—pecuniary circumstances of defendant—whether to be considered. On the trial of an action of trespass for an assault and battery, the plaintiff may give in evidence the pecuniary circumstances of the defendant, to enhance his damages, and in-such case the defendant may give counter evidence on the subject; but unless such evidence is given by the plaintiff, the defendant has no right to introduce proof on that subject, even in mitigation of damages.
    Writ op Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.

      Mr. Charles A. Knight, for the plaintiffs in error.
    Messrs. Brandt & Hoffman, for the defendant in error.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This writ of error brings before ns for review a judgment of the Appellate Court for the First District, affirming a judgment of the Superior Court of Cook county, for the sum of $5000, lately recovered therein by Charles Spangenberg, defendant in error, against John Mullin and Peter McHugh, plaintiffs in error, in an action of trespass vi et armis, for an assault and battery upon the person of the plaintiff.

The plaintiff, at the time of the injury complained of, was living in Chicago, and was engaged in the grocery business. The defendants resided there also, and were, at the time, members of the city police. The evidence tends to show that on the night of the 10th of June, 1882, at the hour of about eleven o’clock, the plaintiff, while standing on the west side of Wells street, and a little south of his residence and place of business on the east side, discovered the defendants on the opposite side of the street and a little south of where he was then standing, dragging a man along the street, in a northerly direction. On discovering them, plaintiff crossed the street, and went over to his own premises, getting there a little ahead of them. The man the defendants were dragging was in a drunken and helpless condition, making no resistance whatever, so that by a mere looker-on it could not have been told whether he was dead or alive, but for the occasional groans that escaped him as he was being rapidly and recklessly dragged over the rough street. As they passed along in front of his premises, the plaintiff hailed the officers, and told them it was a shame to treat one as they were treating the man in their custody, or something to that effect. The officers retorted in an insulting and abusive manner, whereupon the plaintiff told them he would, on the following morning, report them. This seemed to exasperate them, so that they came up to him, and Mullin seized him by the throat and choked him for some time, and then let him go, when plaintiff went into a saloon adjoining his premises, and called on an acquaintance to come and identify him, stating that he was going along with the officers. The latter had followed him into the saloon, and Mc-Hugh arrested him. While he was thus under arrest, and being held by McHugh, Mullin came up and struck him a violent blow upon the head with a club, which felled him to the floor in a senseless condition. The blow upon the head produced an ugly wound, from which the blood flowed freely. After some little delay, plaintiff was carried out of the saloon and laid down upon the sidewalk, in a helpless and almost senseless condition, the wound still bleeding profusely. Upon reviving somewhat, he was taken to the police station, where the defendants preferred against him the baseless charge of interfering with an officer, of which he was subsequently acquitted. From the police station the plaintiff was taken home, where he was, by reason of the injuries received, confined to his bed from Saturday (the day on which the assault occurred) till the following Wednesday.

Upon the whole, the evidence tends to show an unjustifiable and wanton assault upon the plaintiff, resulting in serious injury, under circumstances of almost unparalleled aggravation. It is true, some matters of aggravation are denied by the defendants, but they are uncorroborated by others. With this conflict, however, we have no concern.

With respect to the errors of law complained of, there is little to be said. The trial court, at the instance of the plaintiff, gave the jury the following instructions:

“If the jury believe, from the evidence, that the plaintiff had not committed any offence alleged in the defendants’ pleas, and that both of the defendants concurred in laying hands on him and arresting him, then the jury are instructed that they should find both the defendants guilty, and assess the plaintiff’s damages.
“If the jury believe, from the evidence and under the instructions herewith given, that the defendants, McHugh and Mullin, were both engaged in the common purpose of unlawfully arresting the plaintiff, and that McHugh had laid hold of the plaintiff, and that Mullin immediately afterwards, in pursuance of said common purpose of unlawfully arresting said plaintiff, struck said plaintiff with a club, and that said striking was done in the presence of McHugh, and that McHugh did not try to prevent the same, but, on the contrary thereof, adopted and approved said act of said Mullin in striking said plaintiff, then the jury are instructed that said McHugh is as responsible in this action for said striking as is Mullin. ”

—And it is claimed that in this there was error.

In addition to the plea of the general issue the defendants filed four special pleas in bar of the action, setting up, respectively, the following defences: First, that plaintiff made the first assault; second, that he had been guilty of a misdemeanor, and that the defendants arrested him therefor; third, that the defendants, as police officers of the city, were conveying to the nearest police station a person who had been duly arrested on a charge of having committed a misdemeanor, when the plaintiff interfered with the defendants in the discharge of their duties as such police officers, and that the defendants thereupon, for the cause aforesaid, arrested the plaintiff. The fourth plea is substantially the same as the third.

It is objected that the first of these instructions is vicious, because it does not inform the jury what would constitute the offence of resisting an officer. The language of the instruction substantially conforms to the language used in framing the issues presented by the pleas, and that was sufficient. If the defendant desired to eliminate the questions of law involved in these issues, and have them laid down by the court to the jury, they should have prepared appropriate instructions for that purpose, and have asked the court to give them to the jury. Not having done this, there is no just cause for complaint on the ground suggested.

It is further objected that this instruction in effect tells the jury, if, under the evidence, they “can say that Spangenberg did not commit the first assault, or was not guilty of a misdemeanor, or was not guilty of a breach of the peace, or had not violated any one of the ordinances, then the defendants are not guilty. ” The criticism is founded upon the use of the expression, “any offence, ” it being contended that it is used in that connection in the sense of “one out of many, ” which is one of Webster’s definitions, and it is insisted that, taken in that sense, the instruction required the jury to find the defendants guilty if there was a single one of the offences named which Spangenberg had not committed. The objection taken to the instruction is clearly hypercritical. The expression, “had not committed any offence alleged in the defendants’ pleas, ” obviously means the same as if the language had been, “had committed no one of the offences, ” etc., and the jury, we have no doubt, so understood it. This being so, it follows there is nothing in the criticism.

It is also claimed this instruction assumes as a fact that the defendants concurred in laying hands on the plaintiff. This objection may be disposed of by the simple statement there is no just foundation for the claim. In short, we think the instruction is not obnoxious to any substantial objection.

As to the second instruction, it is claimed that it assumes the arrest was unlawful. This claim is not well founded. The language of the instruction is, “if the jury believe, from the evidence, * * * that the defendants * * * were engaged in the common purpose of unlaiofully arresting the plaintiff, ” etc.

Objections of like character are made to other instructions on behalf of plaintiff, which, for reasons already stated, must be disposed of in the same way.

The only other point made by plaintiffs in error which we deem of sufficient importance to notice, is one relating to the admissibility of evidence. On the trial, the plaintiffs in error offered to show, by way of mitigation of damages, the pecuniary circumstances of McHugh, no evidence of that character having been offered by the plaintiff. On objection by the plaintiff, the court held the evidence improper, and excluded it from the jury, and the defendants excepted. Counsel for plaintiffs in error maintain that the ruling of the court upon the admissibility of the evidence offered is erroneous, and in support of the position cite McNamara v. King, 2 Gilm. 432, and 1 Sutherland on Damages, page 745. The citation from Sutherland seems to be in point, but none of the authorities cited in support of the text sustain it, except the case of Johnson v. Smith, 64 Maine, 553. In all the other cases cited the evidence was offered by the plaintiff, and not by the defendant, except in one or two cases, where the record fails to show how the question arose; and the case just cited, which does sustain the text, seems not to have been concurred in by a full bench. Evidence of this character, even when offered by the plaintiff for the purpose of enhancing the damages, is held inadmissible by many courts and text writers of high standing, but, nevertheless, we have recognized the contrary rule, and have no disposition to depart from it; but under the present state of authorities we are not inclined to extend the rule beyond its present limits.

Where a plaintiff entitled to vindictive damages offers no evidence of the defendant’s wealth with a view of enhancing them, he in effect says, “I ask no damages against the defendant except as a mere individual, without any regard to his property or estate, whether it be much or little, ”—and in that kind of a ease the jury have no right to give any more damages than they would if it had affirmatively appeared the defendant was without pecuniary resources. But where the testimony is offered by the plaintiff, he does it for the purpose of enhancing the damages. By offering it he in effect says, “I ask in the way of damages something more than I ' would be entitled to recover from the defendant as a mere individual, without regard to his pecuniary circumstances. ” In doing this, the plaintiff tenders a new issue of fact, which opens up the question to both sides. The McNamara case, supra, like many others that might be cited, simply supports the proposition that in an action like this the plaintiff may, if he sees proper to do so, offer such testimony,—and that case was cited by this court with approval in Chicago v. Martin, 49 Ill. 241, Peters v. Lake, 66 id. 206, White v. Murtland, 71 id. 250, and Drohn v. Brewer, 77 id. 280; but in none of those cases, nor any we have been able to .find in this court, 'is the right of a defendant recognized to offer evidence of this character as an independent defence, and not by way of rebuttal. To us there seems a manifest impropriety in it, and we can not, therefore, yield our assent to it.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    Vernon Sanford et al. v. Gilbert Finkle.

      Filed at Ottawa November 17, 1884.

    1. Divesting of legal title—surrender and destruction of deed— equity of second grantee. A husband, after having received a deed for a lot from- his wife's parents, surrendered the deed to them for the purpose of having them convey the lot to his wife, and his deed was destroyed, it having never been recorded, and a new one made to his wife, in which he acquiesced for seventeen years before suing for a deed: Held, that the surrender of his deed by the husband, and the making of one to his wife, did not divest his legal title, but passed an equitable title to his wife, which a court of equity would protect.
    2. Settlement—by husband upon wife—what amounts to a settlement. Where a husband surrenders his deed for land to his grantors, to enable them to convey the same to his wife, which is done, and his deed destroyed, this will amount to a settlement by him upon her, in equity. It is an equitable gift that a court of equity will sustain.
    3. Same—consideration to support such a settlement. Marriage is a sufficient consideration for a settlement upon a wife, and so is an existing marriage relation, if it in nowise affects the claims of existing creditors.
    4. Adverse possession—as between husband and wife. Many years after a husband had surrendered to the grantors his deed for land, and had them convey to his wife, in which arrangement he acquiesced for seventeen years, he filed a bill to cancel the deed to his wife, and to compel the grantors to convey to him. His long possession was set up as affording a presumption of his ownership, and as giving ground to have his wife's deed set aside as a cloud on his title: Held, that as his possession was not adverse to the wife, it could not avail, and that she, residing with him all the time, was in possession to the same extent that he was.
    5. Ratification—by acquiescence in act done. Where a deed to a man after delivery is left by him with the grantors, and they destroy the same and make another to his wife, the fact that he acquiesces in the same for over seventeen years, and makes no complaint until after a family dissension arose, affords evidence of his ratification of the arrangement.
    6. Homestead—of husband and wife in each other’s property. A husband has an unquestioned legal right to live with his wife and enjoy property by him settled upon her as a homestead, as fully as if the title was in himself. So has the wife the same rights of homestead in property of which he has the legal title.
    Appeal from the Circuit Court of Whiteside county; the Hon. John V. Eustace, Judge, presiding.
    Mr. Wm. Barge, and Mr. John D. Campbell, for the appellants :
    The surrender of the deed by the grantee, and its cancellation, and the making of a new deed by the grantor to the wife of the first grantee, by his consent and direction, vested the equitable title in the wife. Commonwealth v. Dudley, 10 Mass. 402; Holbrook v. Tirrell, 9 Pick. 104; Lawrence v. Stratton, 6 Cush. 165; Barrett v. Thorndike, 1 Greenlf. 73; Patterson v. Yeaton, 47 Maine, 308; Thompson v. Ward, 1 N. H. 9.
    The re-delivery by the grantee, to his grantor, of .an unrecorded deed, with the intention and for the express purpose of having the same cancelled, and of revesting the title in the grantor, revests the title accordingly. Dodge v. Dodge, 33 N. H. 487; Bank v. Eastman, 44 id. 438; Farrar v. Farrar, 4 id. 191; Mussey v. Holt, 4 Foster, 248; Howard v. Huffman, 3 Head, 564; Nason v. Grant, 8 Shepley, 160; Wiley v. Christ, 4 Watts, 199; Browne on Statute of Frauds, sec. 60; 2 Wharton on Evidence, sec. 861; Mallory v. Stoddard, 6 Ala. 801; Thompson v. Thompson, 9 Ind. 323; Dukes v. Spangler, 35 Ohio St. 119.
    Many eases hold that a grantee who voluntarily consents to the destruction of his deed shall not have affirmative relief under it. Dukes v. Spangler, 35 Ohio St. 119; 2 Wait’s Actions and Defences, 510; 3 Washburn on Beal Prop. (4th ed.) 305. This is based on an estoppel. Farrar v. Farrar, 4 N. H. 191; Trull v. Skinner, 17 Pick. 213.
    This case is not within the Statute of Frauds, because the contract was at least partially executed. Wiley v. Christ, 4 Watts, 199.
    A specific performance of a parol contract for the sale of land may be decreed, notwithstanding the Statute of Frauds, where the consideration has been paid and possession taken. Ramsey v. Liston, 25 Ill. 114; McDowell v. Lucas, 97 id. 489; Bright v. Bright, 41 id. 97; Bonhannon v. Bonhannon, 96 id. 591; Browne on Statute of Frauds, sec. 60.
    The possession of the husband, after the destruction of his deed and a conveyance to his wife, was not adverse. Commonwealth v. Dudley, 10 Mass. 406.

      Mr. C. L. Sheldon, and Mr. C. J. Johnson, for the appellee:
    Many of the eases cited by appellants are where the grantee sold the premises to a third person for value, and he is therefore estopped. Such are Commonwealth v. Dudley, 10 Mass. 406, Holbrook v. Tirrell, 9 Pick. 104, Lawrence v. Stratton, 6 Cush. 165, and 1 Greenlf. 73. Patterson v. Yeaton, 47 Maine, 308, was where the first grantee surrendered an unrecorded deed to the grantor, and the property was then sold to a third person without notice of the prior deed.
    At common law, the cancellation of a deed by consent of parties will not divest the grantee, or invest the grantor with an estate that has once vested. Wilson v. Hill, 13 N. J. Eq. 143; Fonder v. Sage, 46 Barb. 000; Parker v. Kane, 4 Wis. 30; Hinchcliff v. Herman, 18 id. 130; Wilkie v. Wilkie, 28 id. 296; Hilmert v. Christian, 29 id. 104; Bogie v. Bogie, 35 id. 659; Hentch v. Hentch, 9 Mass. 307; Souverby v. Arden, 1 Johns. Ch. 240; Nicholson v. Halsey, id. 417; Jackson v. Page, 4 Wend. 417; Jackson v. Anderson, id. 585; Kellogg v. Rand, 11 Paige, 59; Ruyner v. Hilson, 6 Hill, 469; Kimball v. Grey, 47 Ala. 230; Dukes v. Spangler, 35 Ohio St. 119; Jeffers v. Philo, id. 173; Starr v. Starr, 1 id. 321.
    Twenty years’ possession and payment of taxes make a perfect title. Weber v. Anderson, 73 Ill. 440; Kerr v. Hitt, 75 id. 59; Hale v. Gladfelder, 52 id. 94; Childs v. Davis, 58 id. 411. And one holding under such a title may come into court to remove the record title. Hinchman v. Whetstone, 23 Ill. 185; Rawson v. Fox, 65 id. 206; 1 Story’s Eq. Jur. (12th ed.) 685, note; Arrington v. Liscomb, 34 Cal. 365; Marston v. Rowe, 39 Ala. 722; Moody v. Holcomb, 26 Texas, 714.
    There being neither fraud nor injury in this case, there can be no estoppel. Flower v. Elwood, 66 Ill. 438; People v. Brown, 67 id. 435; Davidson v. Young, 38 id. 135; Dorlarque v. Cress, 71 id. 380; Chandler v. White, 84 id. 435.
   Mr. Justice Walker

delivered the opinion of the Court:

Some time in 1860, appellants, Sanford and wife, conveyed to appellee, Finkle, who was their son-in-law, a lot in Sanfordville. Finkle claims he purchased the lot, and paid a consideration of two dollars for it; but the grantors contend it was conveyed as a gift. The grantee took immediate possession, and improved the property, and he and his family have occupied it as a home ever since. The deed conveying the lot was never recorded. In the early part of 1864, Finkle went to Idaho, leaving his family behind, and did not return till the fall of that year. The deed was taken by Sanford and wife, on the 29th of February of that year, to.one Lucky, a notary public, and it was destroyed, and they executed a deed for the same land to Nancy Finkle, their daughter, and the wife of complainant, which latter deed was duly recorded. On the 14th day of April, 1881, Finkle filed this bill to have' the deed to his wife cancelled, and to have a deed made by Sanford and his wife to himself, for the land in controversy. He alleges that in his absence Sanford and wife obtained the deed, had it destroyed, and conveyed the land to his wife, without his knowledge or consent. This they deny, and claim that in view of his trip to Idaho he voluntarily brought and delivered the. deed to them, with .the request that they should take it to Lucky and have a deed prepared to Mrs. Finkle, and that they execute it, and destroy their deed to him. On a hearing, on the bill, answers, replications and proofs, the circuit court decreed the relief prayed by the bill, and Sanford and wife perfected an appeal to this court, and assigned as error the granting of the prayer of the bill.

A careful examination of the evidence convinces us that appellee did deliver or return the deed to appellants, and they destroyed it, and conveyed the land to Mrs. Finkle, and in doing so they acted under his directions. The evidence is irreconcilably conflicting, but we think that it preponderates in favor of the defence. Where the title is vested by deed in a person claiming under it, the court never disturbs the title unless it clearly and satisfactorily appears that another is entitled in equity to the land. In the conflict in the evidence it can not be said that appellee has clearly established his theory of the case, but, on the contrary, the evidence, we think, preponderates against him.

The weight of the evidence, then, establishing the fact that appellee did surrender the deed to appellants, and that the deed to his wife was made under his directions, would not divest his legal title; but the question arises whether it did not vest the equitable title in his wife, so that he is precluded from claiming the equitable title. In chancery an equitable title may be set up as a complete defence against a legal title. Does, then, his wife, by the arrangement, hold such an equitable title ? If so, a court of equity will not interfere to divest her of that title or of her apparent legal title.

It is urged that there was no consideration to support the arrangement. This is manifestly a misconception. It has ever been held that marriage is a sufficient consideration for a settlement on a wife, as against all but existing liens. And it is equally well settled that an existing marriage relation is a sufficient consideration to support a settlement by a husband on his wife, if it in nowise affects the claims of existing creditors. All such settlements are sustained, both at law and in equity. This is especially true where the settlement is consummated. After the arrangement has been carried into execution, a court of chancery will not aid the donor, when he changes his mind, to resume the title to the property thus settled. In such cases it will not afford him relief. This was such a settlement, in equity. Although appellee may be invested with the legal title to the property, it is an equitable gift made at his own request and under his directions, and equity is required to sustain it. Had his wife filed a cross-bill, she would have had the right to a decree for a deed from him releasing his legal title to her.

But it is urged that appellee’s long possession gave him the right to hold the land as against his wife; that it amounted to a bar of the Statute of Limitations, and after such a length of possession he must be presumed to be the owner, and that the deed to his wife should be cancelled as a cloud on his title, and appellants should be compelled to convey to him, so as to clothe him with the evidence of ownership. The objection to this proposition is, that his possession was not adverse to his wife. She was in possession to the same extent as he was, and was in possession under the deed from her parents, which was delivered to and received by her soon after its execution. She is, in every respect, as fully entitled to invoke long and actual possession as he is. In this respect he has no advantage. If time may be relied on to bar the relief, she may insist on his laches in delaying the exhibiting of his bill. He admits that he knew the conveyance had been made to her some seventeen years before filing his bill. This, under the facts of the case, is strong evidence that he acquiesced in her claim and ownership. But to break the force of this presumption he says that he did not know that the deed conveying the property to him had been destroyed. He knew that appellants had conveyed to his wife, and seems to have been so well satisfied with the arrangement that he took no steps to learn the true condition of his title for about seventeen years, and not then until friendly relations ceased between him and his mother-in-law. After such acquiescence, unexplained, we are justified in believing that he acquiesced in the arrangement, and intended it to have full effect, until friendly relations were broken off between him and Mrs. Sanford, and he then became dissatisfied, and determined to reclaim the title, if he could recover the title by legal proceedings.

It is urged that to sustain this arrangement would be violative of the Homestead law,—that it requires all releases or waivers of its provisions to be in writing, and executed according to its specific requirements, which was not done in this case. There was no release of the homestead, or right to enjoy the property as such. Appellee has the legal and unquestioned right to live with his wife, and to occupy the premises as a homestead as fully as if the title was in him. It then follows, that he did not release his right to occupy it jointly with his wife as a homestead. Were the title vested in him, she would have the same right to homestead in his property as he has in hers. There is no force in this position.

A large number of authorities have been cited on both sides, but we refrain from reviewing them, because all the cases are unlike this in their essential features. Here, appellee attempted to place the legal title in his wife as a settlement. Having failed in that, he did undeniably vest her with an equitable title, which will be sustained and protected.

It is urged that Mrs. Finkle has not appealed, and appellants can not urge error in the decree against her. As we understand it, they do not urge errors committed against her, but against themselves. Appellee filed his bill against them for the purpose of compelling them to convey the land to him, and the court decreed that they should, and to reverse that decree they appeal. But failing to obtain the relief sought against appellants, his decree for thé cancellation of the deed to his wife does not give him the desired relief, and it must therefore fail with the refusal of relief against appellants.

The decree of the court below is reversed, and the cause remanded, with directions to the circuit court to dismiss the bill.

Decree reversed.