text:
    John H. Bruner et al. v. Eliza Ann Bruner.

      Filed at Ottawa November 14, 1885.

    1. Alimony—affecting tille to child’s real estate. Where a father, together with his wife, conveyed a tract of land to his infant daughter some six or seven years before the filing of a bill by his wife against him for a divorce and to set aside such conveyance, it was held, error to decree the sum which the husband was required to pay for alimony and costs a lien upon such infant child’s land, and to give the wife a life estate in a part of such land. The child held the land free from any such charge.
    2. Gift—conveyance of land by a father to his child. Within the year after a person’s marriage the husband and wife conveyed a tract of land owned by the former before the marriage, to his only, child, a daughter then about four years old, intending thereby to give the land to her free from the claim of the wife, and he delivered the deed to his mother to take care of the same for his daughter: Held, that the infant daughter thereby was vested with the absolute title to the land, notwithstanding the father continued to occupy the premises as before, and that his wife, on obtaining a decree for alimony, could not subject the land to its payment.
    Writ of Error to the Circuit Court of Warren county; the Hon. George W. Pleasants, Judge, presiding.
    This was a bill by Eliza Ann Bruner, against John H, Bruner, for a divorce, on the ground of adultery, and against George F. Bruner, claiming that he was acting in collusion with John H. Bruner in the disposal of his personal property to prevent her from obtaining alimony, and against Isabelle Bruner, an infant daughter of John H. Bruner, to set aside a conveyance of sixty acres of land made to her by her father, the defendant.
    On a trial of the issue as to defendant’s being guilty of adultery, the j ury found for the complainant. Other issues in respect to the conveyance of the land to Isabelle, and in respect to the ownership of certain personal property claimed by George F. Bruner, were also submitted to a jury, and findings had in favor of complainant. On the 23d day of October, 1883, a final decree was rendered dissolving the marriage, requiring John H. Bruner to pay the complainant her expenses of the suit, and, in addition to that given in the interlocutory decree for alimony, the further sum of $560, and to pay all costs up to and including the January term, 1882. It further ordered that George Bruner, and the guardian of Isabelle Bruner, out of her estate, pay the costs of the suit after the January term, 1882; that complainant have the title and ownership of the personal property described in her bill, and that George Bruner pay her, within thirty days, the sum of $130, with interest, being the proceeds of sales of hogs by him, and the value of a cow. It further ordered and decreed that this decree be a first lien upon the east half of the north-east quarter of the north-west quarter of town 11 north, range 1 west, containing twenty acres, and also upon the west half of the west half of the north-east quarter, in the same township and range, as to all sums ordered to be paid by defendant John Bruner, subject, however, to the life estate decreed to be vested in complainant, and in default of payment that the first named tract be sold, and if that did not produce enough to satisfy the execution, the other land be sold, subject to the complainant’s life estate" therein. It further ordered and decreed that complainant have an estate for her life in the twenty-acre tract above described, and the west half of the north-west quarter of the north-east quarter of section 14, town 11 north, range 1 west.

      Messrs. Kibkpatbick & Alexandeb, for the plaintiffs in error:
    A delivery to a stranger for the grantee, though the grantee may be entirely ignorant of the matter, is a good delivery.. Bryan v. Wash, 2 Gilm. 557; Rivard v. Walker, 39 Ill. 413; Morrison v. Kelly, 22 id. 610; Hatch v. Hatch, 9 Mass. 307; Thompson v. Candor, 60 Ill. 245.
    A deed may be delivered by acts without words, or words without acts, or both. Bryan v. Wash, 2 Gilm. 557; Steele v. Lowry, 4 Ohio, 74; Verplank v. Sterry, 12 Johns. 552.
    The law presumes much more in favor of the delivery of deeds in case of voluntary settlements, especially when made to infants, than in ordinary cases. Bryan v. Wash, 2 Gilm. 557; Rivard v. Walker, 39 Ill. 413; Masterson v. Cheek, 23 id. 72; Gunnell v. Cockerill, 84 id. 319.
    The mere act of recording a deed is prima facie evidence of delivery, but may be rebutted successfully when it is shown the deed was not in the nature of a family settlement or of a gift to a minor. Insurance Co. v. Campbell, 95 Ill. 267.
    Where the deed of a father to his child is absolute in form and beneficial in effect, and the father causes the same to be recorded, this is, in law, a sufficient delivery, and the title will pass. Cecil v. Brown, 28 Iowa, 242.
    Where a deed to a minor is voluntarily recorded by the father, actual manual delivery and formal acceptance are not necessary. Palmer v. Palmer, 17 N. W. R. 463.
    In Bunn v. Winthrop, 1 Johns. Ch. 329, cited in Reed v. Douthit, 62 Ill. 350, and in other Illinois cases, it is held that a voluntary conveyance or settlement, though retained by the grantor in his possession until his death, is good.
    A gift to a child is meritorious, and may be enforced. Reed v. Douthit, 62 Ill. 352; Crooks v. Crooks, 34 Ohio St. 610.
    After the deed was once delivered no act or declaration of the. father could affect the right of the child. Bryan v. Wash, 2 Gilm. 557; Bennett v. Stout, 98 Ill. 47; Reed v. Douthit, 62 id. 352; Mitchell v. Ryan, 3 Ohio St. 308.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This cáse is before us upon a writ of error, brought by John H. Bruner, George Bruner and Isabelle Bruner, who severally assign various errors, but none as to the granting of the divorce.

There was error in the decree in making the sum which John H. Bruner was ordered to pay for alimony and costs, a lien upon "the lands described in the bill, and in giving the complainant a life estate in a portion thereof, and in decreeing any costs against Isabelle Bruner.

The complainant and John H. Bruner were married on February 27, 1877, and but a short time after, on September 29, 1877, they executed a warranty deed of the lands described in the bill, to Isabelle Bruner, the sole child of said John EL, and being then only about four years old. There is nothing to impeach this deed as vesting the title to the lands in Isabelle Bruner, except the testimony of the complainant that she signed the deed upon condition that it should not be delivered during her lifetime, and the fact that the deed was not filed for record until February 5, 1881,—shortly before John H. Bruner left the State. The deed was signed and duly acknowledged by the complainant. - The justice of the peace who wrote and took the acknowledgment of the deed, testifies that both the complainant and John H. Bruner were present at th.e time, and a conversation was had before him with reference to the object and reason why the deed was made. That* the statement .was made, and he is under the impression that it was made by the complainant herself, that she had some property that came to her from her first husband that she desired to go to her daughter,, and that this land was land that John H. Bruner owned before she married him, and he desired it to go to his daughter, and they thought that would he nothing more than right and proper,—that nothing was said" about the delivery of the deed.

Without adverting to the testimony of John H. Bruner,— further than to say that it contradicts that of complainant and corroborates that of the justice of the peace as to the reason for making the deed,—George F. Bruner and his wife both testify as to different conversations had with complainant, in which she said she did not work for anything in this real property, and she thought, it was right that Isabelle should have it. Mrs. Bruner, the wife of George F. Brqner, testifies that in the fall after the making of the deed, John H. Bruner handed the deed to his mother, who lived with George F. Bruner, saying he wanted his mother to take the deed and take care of it for Isabelle; that his mother put the deed in her bureau drawer; that she frequently afterward saw it lying in the bureau drawer, and that on February 5, 1881, when her husband got the deed to have it recorded, it was in this same drawer. It appears that John H. Bruner had other papers in this drawer, but that this deed was by itself, the other papers being tied up separate. George Bruner, who, at the request of John H., took the deed to the recorder’s office to be recorded, testifies to seeing the deed, in the fall of 1877, in his mother’s bureau drawer at his house, and that he got the deed out of that drawer. The witness Churchill testifies to a conversation with complainant two or three weeks after the making of the deed, in which she said she and her husband had made a deed to his girl to give her his property, and she had given her property to her girl. The whole evidence considered, we regard it as wholly insufficient to affect the validity of the deed as vesting the full and absolute title to the lands in Isabelle Bruner.

As respects George Bruner’s claim of title to the personal property the evidence was conflicting, and not so clearly against the finding of the decree as to call upon us to interfere therewith in that respect; and we may say the same of the decree otherwise than as regards the real estate and costs against Isabelle Bruner. As to such real property the bill should have been dismissed.

As respects the lands described in the bill, and costs against Isabelle Bruner, the decree is reversed. In all other respects it is affirmed, and the cause is remanded for further proceedings in conformity with this opinion.

Decree reversed in part and in part affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Solon Humphreys et al. v. John Nelson, Collector.

      Filed at Ottawa November 14, 1885.

    1. Taxation—valuation of personal properly—by whom. Under the Revenue act of 1872, and the amendments thereto, the owner of personal property, or his agent, or person required to list the same, is not required to fix its valuation. The assessor, not the owner or agent, must fix its valuation, so that the same may be uniform, as nearly as practicable. If the person listing property places a valuation on it, the assessor is under no obligation to be governed in any respect by it.
    2. Same—former decisions. In Cleghorn v. Postlewaite et al. 43 Ill. 430, in giving a construction to certain sections of the revenue laws of 1845, 1849 and 1853, in which it was required that persons listing property for taxation should fix a value thereon, it was held, that when the assessor accepted a list of property made in accordance with those statutes, without question, he could not afterwards alter it without notice to the party assessed. The cases of McConkey v. Smith, 73 Ill. 313, National Bank of Shawneetown v. Cook, 77 id. 622, and Wabash, St. Louis and Pacific Ry. Co. v. Johnson, 108 id. 11, refer to the doctrine announced in Cleghorn v. Postlewaite et al. with approval, although they arose under the Revenue law of 1872, which has no corresponding provisions to those controlling in the latter case. Nor was the doctrine of Cleghorn v. Postlewaite et al. material to the decision of the question before the court in either of those later cases; so what is said in them in regard to the rule in Cleghorn v. Postlewaite et al. is merely obiter dicta.

    3. Same—rights of owner—and remedies in case of over-valuation by assessor. A person whose personal property is assessed has the legal right to demand and receive of the assessor a copy of the statement of his property, showing the valuation of the same by the assessor, signed by him. Such copy should, for convenience, be requested at the time the owner furnishes a list of Ms property, or he may make the request at any time after while the lists are in the assessor’s hands, and if the owner feels aggrieved by an excessive valuation, Ms remedy, in counties under the township system, is by application to the board of review for a reduction. If he fails to avail of this remedy to have his assessment corrected, a court of equity will not relieve him, and enjoin the tax based upon the excessive valuation.
    Writ oe Error to the Circuit Court of Sangamon county; the Hon. William L. Gross, Judge, presiding.
    This was a bill in equity, by the receivers of the Wabash, St. Louis and Pacific Railway Company, to enjoin the collection of a tax levied on a valuation of certain personal property of that company. The material allegations are, that the company, within the proper time, returned to the county clerk a list or schedule of its personal property owned and possessed on the first day of May, 1884, valued at $8600; that the town assessor afterwards, and without any notice to the company, changed the valuation, and increased it to $50,500, a sum largely beyond the value of -the property; that the assessor made no complaint to the company that its valuation was unsatisfactory, and did not offer to examine any officer of the company, under oath, as to the amount or nature of the property the company was liable to schedule. The collector demurred to the bill, and the court sustained the demurrer and dismissed the bill. The receivers prosecute this writ of error from that decree, and assign' for error the sustaining of the demurrer and the dismissing of the bill.
    Messrs. Greene, Burnett & Humphrey, for the plaintiffs in error:
    Under the law as it stood prior to 1872, the increase in the valuation without notice to the owner, rendered the tax on the increase void, and equity, ivould enjoin its collection. Cleghorn v. Postlewaite, 43 Ill. 428; Bank of Shawneetown v.
      Cook, 77 id. 620; McConkey v. Smith, 73 id. 313; Railroad Co. v. Johnson, 108 id. 11.
    This rule has not been changed by subsequent legislation, and it applies equally to corporations.
    Mr. Joseph M. G-roüt, and Mr. James B. Jones, for the defendant in error:
    The cases cited by plaintiffs in error are no longer authority, because the same questions can not arise under the present Revenue act. Under the present act the person listing is not required to furnish any value to the property. The assessor is required to fix that.
    The bill contains no allegations of fraud or ill-will on the part of the assessor, and if there was an error of judgment this court can not now interfere. Insurance Co. v. Pollak, 75 Ill. 295 ; Ottawa Glass Co. v. McCaleb, 81 id. 562; Adsit v. Lieb, 76 id. 201.
   Mr. Justice Scholfield

delivered the opinion of the Court:

In Cleghorn v. Postlewaite et al. 43 Ill. 430, construction was given to the several sections of the statutes then in force, in respect to the making out of assessment lists and the valuation of personal property. As bearing upon the questions then considered, reference was made, in the opinion, to section 16, chapter 89, of the Revised Statutes of 1845, section 26 of the Revenue act of 1849, and to several sections of the Revenue act of 1853. The 16th section of chapter 89 of the Revised Statutes of 1845 authorized the assessor, if he deemed it necessary, to require every owner of taxable property to give in, under oath, a list of his taxable property, and required him, in the presence of such person, to enter a description of the property in his book, and value the same in figures opposite the name of the person, etc. And the 26th section of the Revenue act of 1849 provided that the assessor should, at the time of making the entry in his book, as required by the 16tli section of the Revised Statutes of 1845, give to the person so assessed, a certificate of the entry so made, of the value of the real and personal property so assessed; and the assessor should not make any change or alteration in such entry, after having given such certificate, without giving to the person assessed an additional certificate showing such increased assessment. The 6th section of the act of 1853 directed that each person required to list property should make out, sign and deliver to the assessor, when required, a certified statement of all the personal property which it was his duty to list for taxation; and the 7th section gave the form of the list, in which it is required that the person listing shall fix the value of the property listed by him. The 10th section of the act provided that if the assessor believed that any property had been valued at less than its true value, he should value and charge such property at its true value, and should notify the person listing such property, of such increased valuation. And the court, after considering these different provisions, held that when a party liable to be taxed makes out and delivers to the assessor a list of his taxable property, which is accepted by the assessor without question, that officer has no power afterward, arbitrarily, and of his own motion, to alter it, without first giving the party assessed, notice.

McConkey v. Smith, 73 Ill. 313, National Bank of Shawneetown v. Cook, 77 id. 622, and Wabash, St. Louis and Pacific Railway Co. v. Johnson, 108 id. 11, refer to the doctrine announced in Cleghorn v. Postlewaite et al. with approval, although they arose under the Revenue law of 1872; yet, in neither of those cases, was the doctrine of Cleghorn v. Postlewaite et al. material to the decision of the question before the court, and in neither of them were the provisions of the Revenue act of 1872 examined and compared with those upon which, as we have seen, the opinion in that case was predicated. McConkey v. Smith expressly turned upon the question whether the board of supervisors had power to revise and raise the assessment of personal property. It was held they could equalize assessments, but could not originate an assessment of their own mere motion, -which, in that case, it was said had really been done. In National Bank of Shawneetown v. Cook, the assessment wras upon shares of stock in a national bank. The bill averred and the demurrer admitted that the shares were listed and assessed at $40 per share, which valuation was satisfactory to the owners; that the assessor afterwards, and without notice to the stockholders, changed this valuation, and raised it to $100; that in September of that year, (the assessment not having been completed until in August,) the county board made an order reducing the assessment to $50 per share, and that afterwards, in March, 1873, the county board rescinded its former orders, and increased the valuation of the shares to $64 each. The question in Wabash, St. Louis and Pacific Railway Co. v. Johnson, was whether an assessor may add to his assessment roll subsequently discovered property. What was said, therefore, in those cases, in regard to the rule in Cleghorn v. Postlewaite et al., was clearly obiter dicta.

The Eevenue act of 1872 has no corresponding provisions to those controlling in Cleghorn v. Postlewaite et al. Section 24 of the act of 1872 provides that “persons required to list personal property shall make out and deliver to the assessor, at the time required, a schedule of the numbers, amounts, quantity and quality of all personal property in their possession, or under their control, required to be listed for taxation by them.” The word “value” is significantly omitted. The section then proceeds: “It shall be the duty of the assessor to determine and fix the fair cash value of all items of personal property. ” And so the owner or agent has nothing to do with that question. To the same effect, also, is section 24 of the amendatory act of May 31, 1879. Section 40 of that act requires' the railroad company, or those owning, operating or constructing it, to return sworn lists or schedules of the taxable property of such railroad, as in the act is afterward provided. The 47th section provides that “the county clerk shall return to the assessor of the town or district, as the case may require, a copy of the schedule or list of real estate (other than ‘railroad track’) and of the personal property (except ‘rolling stock’) pertaining to the railroad; and such real and personal property shall be assessed by the assessor. Such property shall be treated in all respects, in regard to assessment and equalization, the same as other similar property belonging to individuals, except that it shall be treated as property belonging to railroads, under the terms ‘lands,’ ‘lots’ and ‘personal property.’ ” Again, in the 78th section of that act, in defining the duties of persons listing property, and of assessors, the assessor is required to call at the office, place of doing business, or residence, etc., and shall require the person to be assessed to make a correct statement of his taxable property, which statement he must swear to and deliver to the assessor; and the language of the section then following is: “And the assessor shall thereupon assess the value of such property, and enter the same in his books.” The S3d section provides that in all cases of failure to obtain a statement of a person’s property, from any cause, it shall be the duty of the assessor to ascertain the amount and value of such property, and assess the same as he believes to be the fair amount and value thereof. As amended by section 24 of the act of May 31, 1879, in such case, the assessor is required to be governed by the same rules of uniformity that he adopts as to value in assessing other personal property, and where any person refuses to make out the list, the assessor is to add an amount equal to fifty per cent of such valuation. The valuation of the owner or agent, it thus appears, is nowhere required; and it is obvious from the provisions quoted, especially when considered in connection with the duty which devolves upon the assessor to make his valúations uniform, that if furnished, the assessor is under no obligation to be in any respect governed by it. The assessor, not the owner or agent, must value the property. Felsenthal et al. v. Johnson, 104 Ill. 22.

But has the owner of property no relief against excessive valuations ? The statute furnishes a ready answer. If the person assessed desires, he may obtain a copy of the assessment from the assessor. The 84th section provides: “The assessor, when requested, shall deliver to the person assessed a copy of the statement of property, in the act before required, showing the valuation of the assessor of the property so listed, which copy shall be signed by the assessor.” This request should, for convenience, be made at the time of furnishing the list of his property by the tax-pa)rer, but might be made at any time while the lists are in the hands of the assessor. Then section 86, as amended by the acts of May 29, 1879, and June 2, 1881, requires, in counties under township organization, that the assessor, clerk and supervisor of the town shall meet on the fourth Monday of June, for the purpose of reviewing the assessments of property in such town. And on the application of any person considering himself aggrieved, they shall review the assessment and correct the same, as shall appear to them just. Every tax-payer must take notice of this opportunity to have his assessment corrected, at his peril. (Porter v. Rockford, Rock Island and St. Louis Railroad Co. 76 Ill. 598.) But the statute also requires that notice shall be given by posting notices, for at least ten days previous, in three public places of the town.

There is no pretence in the averments of the bill, that the railway company asked for a copy of the statement of its assessment, as provided by section 84, and that the assessor refused to deliver it, or that it appeared before the town board on the fourth Monday of June, and made complaint that its assessment was too high, and was denied a hearing by that board. Having abundant remedy at law for the correction of the errors by which it claims to have sustained injury, and having neglected to resort to that remedy, it can not now have relief in a court of equity. Adsit v. Lieb et al. 76 Ill. 198; People v. Big Muddy Iron Co. 89 id. 116.

The demurrer to the hill was properly sustained.

Decree affirmed.


author: Mr. Justice Scott

text:
    The Ohio and Mississippi Railway Company v. George S. Russell.

      Filed at Springfield November 14, 1885.

      1. Fencing eaiijBoads—building fence by land owner after notice to the company—who shall be liable to the owner. Where a railway company neglects or refuses to build a fence along its right of way, so as to prevent stock from getting upon its track, after notice by the owner of adjoining land, the owner or occupant of such adjoining land may build the fence, and bring his action to recover double the value thereof, against either the corporation owning the road, or any other party actually occupying or using such railroad, at his election.
    2. Same—effect of a receivership upon liability of the company. In an action against a railway company to recover double the value of a fence built by the owner or occupant of premises adjoining its right of way, after neglect or refusal of the company to build the same on notice, it is no defence, so far as the corporation is concerned, that its property, etc., is in the hands of a receiver, or is used by another party.
    3. Same—as a police regulation. The statute requiring a railway company within a certain time to fence its right of way, is a police regulation of the State, and it is not within the jurisdiction of any court, either State or Federal, to arrest its operation.
    4. Beceivebship—of corporation—continued existence and exercise of corporate franchises. The appointment of a receiver for a corporation gives the receiver only the temporary management of its affairs, under the direction of the court. The corporation still exists, and may nevertheless exercise any of its franchises, so it does not interfere with the rightful management pf its affairs by the receiver, so far as his duties are defined by the court appointing him.

      5. Injunction—extent of its restraining effect. On the appointment of a receiver for a railroad company, the court, by injunction, prohibited the company from interfering with the property, or disturbing the possession of the receiver; but this would not operate to prevent the company building a fence along its right of way, as required by the statute, and so would afford no defence to an action by an adjacent land owner to recover twice the value of a fence which he had built after due notice to the company.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Cass county; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Pollard & “Phillips, for the appellant:
    The statute under which this suit is brought is a penal statute, and must be strictly followed to entitle the party building the fence to recover double value. Railway Co. v. Zeigler, 108 Ill. 304.
    The statute (sec. 52) gives the land owner a double remedy, or one against two parties. If the corporation owning the road has leased it, the land owner has his election to proceed against either the corporation or the party in possession of and operating the road. If he proceeds against the corporation, he must notify it or its agent. If he elects to proceed against the party in possession, he must serve notice on that party or its agent. He can not serve the notice on the corporation or its agent, and bring his suit against the lessee or party in possession, and vice versa. In this case the receiver was in possession, and the notice was served on his agent, but the suit is against the corporation.
    The agent of the receiver is in no sense the agent of the corporation. The first principle of agency is, that the principal has the right to appoint and discharge his agents, and his liability for their acts depends upon this right. The possession of the receiver is not the possession of the corporation; but is antagonistic thereto, and the company can not control either the receiver or his employes. High on Receivers, sec. 396; Railway Co. v. Davis, 23 Ind. 553; Railway

      Co. v. Anderson, 10 Bradw. 313; Railway Co. v. Wyatt, id. 289; Turner v. Railroad Co. 74 Mo. 602.
    At the time this notice was served and the fence built, the railroad company could not have entered upon the right of way to build the fence without a violation of the injunction of the United States Court, contained in the order appointing the receiver. By that order this company was not only deprived of all its property, and the revenues arising therefrom, but it was positively prohibited by injunction from interfering with the property or disturbing the possession of the receiver. It wras therefore impossible for appellant to have built the fence. Under those circumstances no penalty could be enforced against appellant, even if the notice had been served on it instead of the receiver.
    Mr. Oscar A. DeLeuw, and Mr. W. P. Gallon, for the appellee:
    The duty to fence its road is, by the statute, placed upon the railroad corporation. It is an improvement of the realty owned by the corporation, the title to which is not divested by the appointment of a receiver. Bev. Stat. chap. 114, sec. 48.
    The decree appointing a receiver did not prevent the corporation from discharging the duty imposed on it by the statute. The law imposing such duty gave it the right to enter upon the right of way to discharge it.
   Mr. Justice Scott

delivered the opinion of the Court:

This, action was brought by George Bussell, against the Ohio and Mississippi Baibvay Company, to recover double the value of a fence which it is alleged plaintiff built on the right of way of the defendant corporation. In the- declaration the facts are averred with sufficient fullness, on which plaintiff bases his right to recover, from which it appears defendant was possessed of, and was operating, a railroad through the county of Cass, and” that it was the duty of such defendant, under the statute, to build a fence on its right of way next adjoining plaintiff’s land; that on failing to build such fence as the law requires, plaintiff caused a notice to be served on defendant that unless it conformed to the statute and built such fence within thirty days, plaintiff would proceed, as he is authorized by statute in snch cases to do, to build the fence and hold defendant liable for double the value, and that on defendant’s failure to build such fence, plaintiff did build it, and now by his action seeks to recover double the actual cost of constructing the same. To the declaration alleging these and other facts, defendant pleaded, first, the general issue; and second, a special plea, in which it is averred that at and before the time of building the fence, as in the declaration stated, the railroad and all the property of defendant was in the hands of a receiver appointed by a District Court of the United States, in pursuance of an order of that court authorizing such receiver to take possession and operate such railroad, and enjoining and restraining the company, its officers and employes, from in any manner interfering with the possession of the receiver, or with the management or the operation of the railroad property. To this special plea the court sustained a demurrer, and defendant elected to stand by its plea. A trial was had before the court without the intervention of a jury, on the plea of the general issue, which resulted in a judgment against defendant for double the value of the fence built by plaintiff. That judgment was affirmed in the Appellate Court for the Third District, and defendant brings the case to this court on its further appeal.

The decision of the court in sustaining the demurrer to the special plea, raises the principal question in the case. Conceding the correctness of that decision, it would follow, the ruling of the court excluding as evidence the orders of the United States Court appointing the receiver was also correct. Both decisions will therefore be examined together as one question.

Section 1, of the act of 1874, makes it the duty of every railroad corporation, within a certain time after its line is open for use, to erect and thereafter maintain fences on both sides of its road, suitable and sufficient to keep stock from getting on the track. Section 3 of the same act declares, whenever any railroad corporation shall neglect or refuse to build such fence in accordance with the provisions of the act, the owner or occupant of the land adjoining the railroad may give notice to such corporation to build such fence within a time specified. The notice authorized to be given may be served on the corporation, or the lessee, or the persons operating such railroad. By the 4th section it is provided, if the parties so notified shall refuse to build such fence, the owner or occupant of the land required to be fenced may build the fence, and the person so building such fence shall be entitled to double the value thereof from such corporation or party actually occupying or using such railroad. It will be perceived, on a close reading of the statute, the person constructing the fence under its provision may bring his action either against the corporation, or the party actually occupying or using such railroad, at his election. Either one is liable to the penalty imposed by the statute. It is therefore no defence, so far as the corporation is concerned, that the property of the corporation is in the hands of the receiver, or that its road is occupied or used by another party. The statute has expressly given the remedy against either party, and the party aggrieved may bring his action against one or the other, as he deems most expedient. Under this construction of the statute, it is obvious the demurrer to the special plea was properly sustained.

Counsel have cited a line of authorities that hold, ■while a railroad is in the hands of a receiver, under appointment of a court of competent jurisdiction, with full power to operate such road, to the exclusion of its employes, the corporation will not be liable for injuries caused by the negligent conduct of the agents or servants of the receiver, over which it has and can have no control. Conceding the correctness, as is freely done, of the general doctrine on this subject, it has no application to the case being considered. The defendant in this case is not sued for an injury or damage done by the servants of the receiver operating the road. The action is against defendant for the non-performance of a duty imposed by statute, against which it is apprehended no order of a court can avail to relieve it. It is a police regulation, to which the corporation is subjected by the sovereignty of the State, and it is not within the rightful jurisdiction of the court, either State or Federal, to arrest its operation. Notwithstanding the appointment of the receiver, the corporation is clothed with its franchises, and such corporation still exists. The effect of the appointment of the receiver is simply to give him the temporary management of the railroad, under the direction of the court, instead of the manager appointed by the directors of the corporation. It is that, and nothing more. As the corporation still exists, it ma.y still exercise, as before, its franchises, so it does not interfere with the rightful management of the road by the receiver, so far as his duties are defined by the court appointing him. No doubt it may do many corporate acts, and certainly it can do all things necessary to preserve its legal existence, notwithstanding the appointment of the receiver to which1 the temporary management of the road is given,—otherwise the appointment of the receiver would be tantamount to a dissolution of the corporation. It is a principle well understood, that all railroad or other corporations transacting business in its nature public, are subject to all reasonable police regulations deemed necessary for the common welfare. The mere fact its property may be temporarily in the hands of a receiver- does not relieve a corporation from the operation of such regulations, any more than a private citizen is released from the duty to observe the law because his property may be sequestered by the order of a court for the benefit of his 'creditors. But the duty of the corporation in jihis regard need not be further discussed on principle. It is sufficient the statute has imposed the duty sought to be enforced against the corporation, and it must be obeyed.

It is objected the service of the notice to build the fence was not made upon defendant or any of its agents. It is a sufficient answer to the position taken, there was testimony to the effect the party on whom the, notice.was served was in fact an agent of defendant, and as it was a controverted question of fact, at the trial, whether he was such agent, the finding of the Appellate Court, as to it, is conclusive upon this court. That finding must have been in favor of plaintiff, as it was necessary to sustain his action,—otherwise the judgment might have been for defendant.

The suggestion that at the time the notice was served and the fence was built, the railroad company could not have entered upon the right of way to build the fence, without a violation of the injunction contained in the order of the court appointing the receiver, has so little foundation, either in reason, or fact, or law, that it is hardly necessary to remark upon it. It is idle to say the building of a fence on the line between the right of way and the land of an adjoining proprietor would be such an interference with the operation of the railroad by the receiver as would subject the party doing it to punishment as for contempt of court.

No error appearing in the record, the judgment of the Appellate Court is affirmed.

J udgment affirmed.

Mulkey, Ch. J., and Scholfield, J., dissenting.


author: Mr. Justice Sheldon

text:
    The People ex rel. Richard J. Fullerton v. Hiram T. Gilbert, County Judge.

      Filed at Ottawa November 14, 1885.

    1. Appeal—from order of county court, on inquiry as to the sanity of a person. No appeal will lie from a finding and order of the county court in a proceeding to inquire into the alleged insanity of a person, had under the “Act to revise the laws in relation to the commitment and detention of lunatics,” approved March 21, 1874.
    2. Insane pebson—on recovery, entitled to discharge from hospital-remedy in case of improper detention. If a person adjudged insane, and committed to the hospital for the insane, shall be restored to reason, he will be entitled to be discharged, and if he shall be afterward detained against his wishes, the law gives him a remedy by the writ of habeas corpus.

    Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of La Salle county; the Hon. Charles Blanchard, Judge, presiding.
    Messrs. Fowler Bros., and Mr. J. B. Rice, for the plaintiff in error.
    Mr. M. T. Moloney, for the defendant in error.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a petition filed in the circuit court of La Salle county, for a writ of mandamus to Hiram T. Gilbert, judge of the county court of La Salle county, commanding him to allow the relator, Richard J. Fullerton, an appeal to the circuit court of La Salle county, from a finding that the latter was insane, in a proceeding had in said county court. The petition alleges that in such proceeding to inquire into relat- or’s alleged insanity, he was brought before said county court, and a trial had; that having as many as twenty-five witnesses present to testify to his sanity, the court limited him to the calling of only five of such witnesses and two physicians; that after the jury had retired to consider of their verdict, and had been out some time without agreeing, the judge of said county court called the jury before him, and, in the absence of relator and his counsel, instructed the jury orally, and sent the jury back to consider further of their verdict, and that afterwards, the jury not agreeing upon their verdict, the said county judge again called the jury into his presence, and after giving them further oral instructions, the jury again retired, and under the direction of said county judge took the relator with them to their room, and after there remaining about two hours with .relator, and after further consideration, they returned their verdict finding the relator to be insane,, and a fit person to be sent to the State hospital, whereupon it was ordered by the said county court that the verdict be entered of record, that the clerk transmit a copy of the verdict to the superintendent of said hospital, and that the conservator of the relator pay all the costs of the proceeding out of the relator’s estate; that thereupon the relator prayed an appeal to the circuit court of La Salle county, which was disallowed. The petition avers that the relator is sane. The circuit court sustained a. demurrer to the petition, and dismissed the same. The Appellate Court for the Second District affirmed the judgment, and the case is brought to this court on error.

The sole question here presented is, whether the right of appeal from the finding and order in the county court exists in this proceeding to inquire into the alleged insanity of a person. That proceeding was had under chapter 85 of the Revised Statutes of 1874, page 681, entitled “An act to revise the law in relation to the commitment and detention of lunatics, ” approved March 21, 1874, in force July 1, 1874. The act itself gives no right of appeal. But it is insisted that it is given by section 122 of the “Act to extend the jurisdiction . of county courts, and to provide for the practice thereof,” approved March 26, 1874, in force July 1, 1874, (Rev. Stat. 1874, p. 344,) it being, that “appeals may be taken from the final orders, judgments and decrees of the county courts to the circuit courts, in all matters,” with some exceptions which do not include this case, “upon such appeal the case shall be tried ele novo. ” Broad as is the language here used, we are not of the opinion that it embraces the matter of this proceeding in question. An appeal is not compatible with the nature of the proceeding. It respects an unfortunate class of persons who, from want of reason, are unable to take care of themselves, and where the State interposes for their protection and care. The proceeding is an inquest as to the state of one’s mind,—to inquire whether or not he is insane; and it is a preliminary step to the admission of a person into an asylum for the insane, it being a provision in section 22 of this chapter 85, that no person shall be received into a State hospital for the insane, or into any hospital or asylum for the insane in the State, unless he shall have been declared insane by the verdict of a jury, and authorized to be confined by order of court. The jury trying the question is to be one of six persons, one of the number being a physician, and upon return of a verdict that the person is insane, the court is required to enter an order that the insane person be committed to a State hospital for the insane. The taking an appeal would suspend the proceeding and leave the insane person at large until the appeal, and, perhaps, further successive appeals, could be decided, while there might be necessity for the person’s own safety and benefit, as well as the safety of others, that he should be immediately placed in an insane asylum for confinement, and to receive medical treatment there. In the case of an appeal there is always an appeal bond provided for, which is supposed to be a full indemnity against all the inconvenience of delay from the appeal. But an appeal bond would be utterly useless in the way of obviating or in any way indemnifying against the mischief of the delay which would he caused hy the taking of an appeal in such a case as this. An appeal would frustrate the object of the proceeding,—the immediate commitment of a person deemed to be insane, to an institution for the insane for safe keeping and treatment. The act makes provision for the temporary detention of the person alleged to be insane, if deemed necessary, pending the proceeding, and previous to the verdict, and after verdict, and pending admission to the hospital, by providing that the court may make such order in that behalf as the case may require, and that a certified copy of the order shall authorize the person to be temporarily detained by the sheriff, jailor or other suitable person to whom the order shall be directed. But no provision is made for any such temporary detention pending an appeal,—a manifestation that no appeal was intended to be given. It is true, that notwithstanding the contrary finding of the jury, the alleged insane person might be sane, and the ill-consequences supposed might not result from the allowance of an appeal. But if the appeal lies, it lies in all cases equally, whether the person be a raving maniac, mildly affected with insanity, or be in fact sane. There can be no distinction made. The finding of the jury and the order of the court, at least, must be -taken as presumptive evidence that the person alleged to be insane is insane, and that his case renders proper his immediate commitment to the State hospital for the insane, and that the delay of an appeal might be fraught with injurious consequences.

The 20th section of the act provides that when any patient committed to the hospital shall be restored to reason, he shall be discharged, and that if he be detained afterward, contrary to his wishes, he shall have the privilege of a writ of habeas corpus at all times. Here is a remedy provided by the act itself, for the ease of a sane person, more speedy than that of an appeal. "Whether or not a writ of error would lie, we express no opinion, that question not being before us. Chapter 86 (approved March 26, 1874, Eev. Stat. 1874, p. 685,) which provides for a similar inquiry by a jury, to ascertain whether a person is an idiot, lunatic, or distracted, in order for the appointment of a conservator to take charge of and manage his estate, provides for an appeal from the finding. The two acts are, to a certain extent, in pari materia, and giving an appeal under the one; and not under the other, tends to show the legislative intention that there should be no appeal in the latter case.

We are of opinion there was no right of appeal in the case, and that the circuit court rightly sustained the demurrer, and dismissed the petition.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Chief Justice Mulkey

text:
    Frederick H. Cornell et al. v. Leroy Payne.

      Filed at Ottawa November 14, 1885.

    1. Garnishment—before a justice of the peace—necessity of garnishee appearing in person. The law requires a garnishee, in a proceeding before a justice of the peace, to appear in person and submit to an oral examination under oath, and no one can perform this duty for him. This rule does not apply, however, to a corporation, as it can answer only by an agent.
    2. Measure or damages—in malicious prosecution based on garnishee proceedings—expenses of agent who answers for garnishee. If a person, when served with garnishee process from a justice of the peace, fails to attend in person before the justice at the time and place required, but sends an agent to answer for him, the expenses incurred in sending the agent can not be treated as an element in the assessment of damages, in any legal proceeding.
    3. So in an action for a malicious prosecution, based on certain garnishee proceedings against the plaintiff, alleged to have been malicious, the court was asked to instruct the jury, “that in garnishee proceedings before a justice of the peace, the law requires the party to appear and answer under oath, and this requirement of the statute can not be waived, except by consent of the parties; and if the jury find in the evidence that in these several garnishee proceedings the plaintiff, P., did not answer under oath, then P. can not recover for the expenses incurred in answering by his agent, B.," which the court refused: Held, that it was error to refuse the same.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Mr. B. M. Munn, for the appellants:
    An action for malicious prosecution should never be brought except for malicious arrests or false imprisonment. Garton v. Brown, 27 Ill. 489; Payne v. Donegan, 9 Bradw. 566.
    The garnishee is required to appear before the justice, and answer personally, under oath, except in the case of corporations. A corporation, when garnisheed, must answer by its proper officer, and that must be under oath. Oliver v. Railroad Co. 17 Ill. 587.
    The word “may,” in section 6, is construed to mean “must” or “shall,” in such case. Kane v. Footh, 70 Ill. 587.
    A garnishee must show good faith in his answer. (Boone v. Stooden, 24 Ill. 320.) He must not be vague or evasive. Crain v. Gould, 46 Ill. 293.
    There must be a concurrence of malice and want of probable cause to maintain this action. Spaids v. Barrett, 70 Ill. 410; 1 Greenleaf on Evidence, sec. 450.
    Mr. Geo. F. Westover, for the appellee:
    The appellee maintains that this action lies for prosecuting a series of groundless civil suits maliciously and without probable cause, to injure and harass the defendant. It lies for an abuse of the process of courts, in prosecuting groundless civil suits, with the malicious intent to injure the defendant, or to extort money. Such injury may be to defendant’s person or his property.

      It is not necessary to support such action, that the person of the plaintiff should have been arrested, or his property-attached in the malicious suit. If' he be wrongfully put to expense and trouble in defending against a malicious prosecution, the action for damages will lie. Pangburn v. Ball, 1 Wend. 345; Woods v. Finnell, 13 B. Mon. 628; Glosson v. Staples, 42 Vt. 209; Whipple v. Fuller, 11 Conn. 582; Mann v. Holbrook, 20 Vt. 523; Weaver v. Page, 6 Cal. 681; Spaids v. Barrett, 57 Ill. 289; Page v. Cushing, 38 Me. 523; Bond v. Chapin, 8 Metc. 31; Moulton v. Lowe, 32 Me. 466; Cox v. Taylor, 10 B. Mon. 17; Wills v. Noyes, 12 Pick. 324; Savage v. Brewer, 16 id. 456; Robinson v. Killum, 6 Cal. 399.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

This was an action of trespass on the case, brought by Leroy Payne, in the Superior Court of Cook county, against the appellants and others, for a malicious prosecution, resulting in a judgment for the plaintiff for $300, which was affirmed by the Appellate Court for the First District, and the case is brought here by appeal on a certificate from that court.

It appears from the record that Daniel Donegan, having a claim against William Ennis, both of whom were residents of Chicago, placed the same in the hands of appellants, claim agents, for collection; that the latter, after having made some efforts .to collect the claim .from Ennis, sued him before Asa Farmer, a justice of the peace at Blue Island, some fifteen iniles from Chicago, who, on hearing the cause, rendered a judgment against Ennis, in favor of Donegan, for $16.77 and costs. An execution having been issued on this judgment and returned no property fount, on the 13th of November, 1880, the justice, at the instance of appellants, issued a summons against appellee, as garnishee of Ennis, returnable on the 19 th of the month. Payne did not appear in person before the justice, but sent a man in his employ, by the name of Baker, to answer for him. The justice, on the return day, proceeded to hear the cause on its merits, instead of entering a conditional judgment and issuing a scire facias, as he should have done. The trial resulted in a judgment against appellee for §19.60 and costs, from which judgment he appealed to the circuit court. Without awaiting the result of this appeal, the appellants commenced three other garnishee proceedings against Payne, on account of the same judgment against Ennis, but Payne neglected and refused to personally appear and answer in any of them, and they were all dismissed at Donegan’s costs. Baker, however, appeared in each of these suits, as the agent of Payne, who bore the expenses of Baker’s attendance.. On the trial the jury were, in effect, told by the court to find the two defendants, other than the appellants, not guilty,'which they did. The appellee also stipulated that he claimed no damages on account of the first garnishee proceeding.

The court, upon the trial, was asked by the defendants to give the jury the following instruction:

“That in garnishee proceedings before a justice of the peace, the law requires the party to appear and answer under oath, and this requirement of the statute can not be waived except by consent of parties; and if the jury find, in the evidence, that in these several garnishee proceedings the plaintiff, Payne, did not answer under oath, then Payne can not recover for the expense^ incurred in answering by his agent, Baker. ”
—Which it declined to do, and this is assigned for error. The propriety of the ruling of the court in this respect depends upon the construction to be given to the first, fourth, sixth and eighth sections of chapter 62, Starr & Curtiss’ edition of the Revised Statutes, entitled “Garnishment.” The first section gives the remedy by garnishment, and prescribes the manner of commencing the proceeding,—whether before the circuit court or a justice of the peace. The fourth section specifies the manner of serving process when the proceeding is before a justice of the peace, directs the tender of certain fees by the creditor at whose suit the proceeding is commenced, and provides that if the person or persons so summoned shall refuse or fail t® appear at the time and place specified in the process, the justice shall render judgment against the garnishee for the amount of fees and traveling expenses advanced to him by the creditor, in addition to the amount found toJoe due from him to the judgment debtor. The sixth section provides for an oral examination of the garnishee “touching the personal estate, goods, chattels, moneys, choses in action, credits and effects of the defendant in the original judgment, and the amount and value thereof, in his possession, custody or charge, or from him due and owing to such defendant. ” The eighth section provides that if the garnishee shall not appear at the time and place specified in the summons, the justice shall enter a conditional judgment against such garnishee for the amount of the plaintiff’s demand or judgment against the original defendant, and that thereupon a scire facias shall issue against such garnishee, returnable as in other cases, commanding him to appear at the time and place specified in the scire facias, and show cause why the judgment should not be made final. It is further provided that if the garnishee, when served with process, or notified as required by law, “shall fail to apjoear and make discovery in manner aforesaid, ” the justice shall confirm the judgment, etc.

From these provisions of the statute it is clear that it was the intention of the legislature to compel the garnishee to appear before the justice, and, in the language of the act, make discovery of the true state of the account between himself and the defendant in the judgment, or otherwise the remedy by garnishment in most cases would be wholly unavailing. In order to compel such discovery, the legislature so framed the law, where the garnishee, after being duly notified, neglects or refuses to appear and make such discovery, as to give .the creditor all the relief he could have obtained had the garnishee appeared before the justice and submitted to an oral' examination under oath. If, as contended, the law permits the garnishee to send an agent before the justice to answer for him, all he would have to do, if the garnishee wished to defeat the creditor’s claim, would be to send some one before the justice that knew nothing about his indebtedness to the judgment debtor, or the matters in controversy: This, of course, would defeat the chief object of the law, and make the proceeding in many cases a mere farce. We can not give our assent to such a construction of the statute. The law requires the garnishee, when properly summóned, to appear in person before- the justice, and submit.to an oral examination under oath, and no one can .perform 'this duty for him. He has.the simple alternative of appearing in person or of having a judgment entered against.him by default for the amount of the creditor’s judgment against the original defendant," From the necessity of the case, this can not apply to a corporation, as it can not answer at all except by an agent. The sending of an agent, then, to answer for the garnishee', is á mere idle ceremony, that finds no sanction in the law., and it consequently follows that" expenses "incurred in sending him on such, an errand can not " be treated', as an element in the assessment of damages in any legal proceeding,

The refused instruction we regard as merely announcing this principle, and should therefore have been .given.

For the errors indicated, the judgments'of the courts below are reversed, and the cause is remanded to "the Superior Court of Cook county for further proceedings in conformity with this opinion.

Judgments reversed,.-


author: Mr. Justice Shops

text:
    Charles L. Hastings v. Gabriel Bryant et al.

      Filed at Springfield November 14, 1885.

      1. Judgment men—under Revised Statutes of 1845 not continued by levy. Under the Revised Statutes of 1845, relating to judgments, the levy of an execution, whether in a foreign county or in the county of the judgment, did not extend the judgment lien beyond the seven years; and on the expiral tiori of the seven years’ lien any execution and levy fell with it, and any subsequent proceeding thereunder as to bona fide purchasers or incumbrancers was void. ■ ' 1
    "2. Same—sole after the expiration of lien—validity as against debtor. Under that statute, if an execution issued within a year, the judgment became a lien for seven years from the last day of the term at which it was rendered; and although this lien was lost after the expiration of such time, yet an alias execution cquld be issued thereon after that time and within twenty years, and levied upon the real-estate of the debtor, and a sale thereunder was valid to pass his title, though not as to bona fide incumbrancers and purchasers from him before levy and sale.
    3. Same—ext ended, by act of 1872, one more year in case of a levy within seven years. By section 6 of the act .of 1872, relating to judgments, if a lev)* upon land is made within seven years after the rendition of the judgment, the lien of the judgment upon the land levied on, even as against bona fide purchasers and incumbrancers of the debtor, is extended for one year longer; and if a sale is made of the same within su'ch additional year, it will pass the title, even as against bona fide purchasers and 'incumbrancers.
    4. SAME:—under what process the sale may be made—the statute construed. It is provided in section 6 of the act of 1872, that real estate levied upon within seven years after a judgment has been rendered, “may be sold upon a vendilio rei exponas, at any time within one year after the expiration •of said seven years.’.’ -It is- not -essential, however, to the validity of the sale made after the expiration of the seven years, that such writ should be issued, as the office of a venditioni exponas is merely to direct that to be done which the officer already has the authority to do. .
    Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.

      Messrs. Bbown & ICibby for the appellant:
    Section G of the act of 1872, relating to judgments, provides that “real estate levied upon within said seven years may be sold upon a venditioni exponas at any time within one year after the expiration of said seven years.” Under this the lien of the judgment is continued one year after the expiration of the seven year lien, if levied upon within the seven years, and the land so levied upon may be sold within one year after the seven years have elapsed, under a writ of venditioni exponas. Dobbins v. First National Bank of Peoria, 112 Ill. 553.
    The question presented is, whether under this law the sale, when made after the seven years, must be under a venditioni exponasThat writ is one issued to compel the sheriff to sell property previously levied upon. 2 Bouvier’s Die. 621; Freeman on Executions, secs. 57, 59, et seq.; Holmes v. McIndoe, 20 Wis. 657; Bellingall v. Dancan, 3 Gilm. 477; Phillips v. Dana, 3 Scam. 551.
    The writ of venditioni exponas confers no new authority upon the officer. Irvin v. Pickett, 3 Bibb, 343; Cox v. Joiner, 4 id. 94.
    The effect of a sale under a writ of venditioni exponas is the same as though made under the original writ before the return day, and the purchaser acquires the same title which would have passed under the original writ. Badham v. Cox, 11 Ind. 456; Zug v. Laughlin, 23 id. 170; Dor v. Hayes, 4 id. 117.
    A sale made under this writ relates back to the delivery of the original execution. Taylor v. Mumford, 3 Humph. 66.
    If the levy of the original writ be upon real estate, the writ of venditioni exponas may be directed to, and executed by, either the sheriff who made the levy, or his successor in office. Bellingall v. Duncan, 3 Gilm. 477; Holmes v. McIndoe, 20 Wis. 657; Sumner v. Moore, 2 McLean, 59.

      Messrs. Mobbison & Whitlock, Mr. Oscab A. De Leuw, and Mr. Julian P. Lippincott, for the appellees:
    The cases cited by appellant do not overrule the cases of Tenney v. Hemenway, 53 Ill. 97, and Scammon v. Swartwout, 35 Ill. 342, which hold that the lien of judgments on real estate is the creation of the statute alone, and receives no aid from the common law.
    The statute of 1872 has not provided for a sale of real .estate after the expiration of the seven years, as against bona fide purchasers, except under the writ of venditioni exponas. The decision of this court, that the sale can take place only in the mode, at the time and upon the conditions and limitations imposed by the statute, is still the law. The case of Dobbins v. First National Bank, cited, does not decide that there is “time allowed for selling” without a writ of venditioni exponas.

   Mr. Justice Shops

delivered the opinion of the Court:

This was an action of ejectment, by appellant, against appellees, in the Morgan circuit court, to recover certain lots in the city of Jacksonville. Both parties claimed title through Alexander Edgmon, as common source. The title of appellant was based upon the following facts: On the 1st day of December, 1875, one Ann Becraft recovered a judgment in the circuit court of Morgan county, against Alexander Edgmon, on which execution issued within one year, and was returned by the sheriff unsatisfied. On the 13th day of November, 1882, alias execution issued thereon, and on the same day was levied on the property in controversy. The sheriff advertised the lots for sale on the 13th day of January, 1883, and on that day, under said execution, without the issuance of a ven&itioni exponas, sold the same to one Weathers, to whom a certificate of purchase was issued. Weathers afterwards assigned said certificate to appellant, and no redemption having been made from said sale, the sheriff, on the loth day of April, 1884,.executed and delivered to appellant a deed for said.lots. On the trial below, the court excluded said sheriff’s deed, which resulted in a finding for defendant. A motion for a new trial was overruled, and judgment rendered against appellant for costs. The appellant brings the case to this court by appeal.

; The title of appellees is not disclosed, further than that they claim through the common source, therefore the only question presented is, whether said deed was sufficient to convey the title of Edgmon, defendant in execution, to appellant. No objection is urged, nor is any apparent, to the validity .of the -judgment, or any of the proceedings under said execution, prior to the sale; but it is insisted that the sale is invalid .because the alias execution having been issued and levied within seven years from the rendition of the judgment, did not authorize a sale of the property after said seven years had elapsed, but should, have been returned.and a writ venditioni exponas issued, under which it is conceded a valid sale could have been made. The proper solution of this question will involve a construction of section 6, of chapter 77, of the Revised Statutes of 1874. It will aid in this to look at the prior statute, and ascertain the supposed defects therein attempted to be corrected by this section of the act of 1872, and what alteration in fact was made by the latter act.

■ The statute of 1845 provided that the judgment shall be a lien, etc., “from the last day of the term of the court at which it was rendered, for the period of seven years, provided that execution b§ issued at any time within one year on such judgment ; and after said seven years, the same shall cease to be a lien on any real estate, as against bona fide purchasers or subsequent incumbrancers, by mortgage, judgment or otherwise. ” Under this Statute it had been repeatedly held that a levy of an execution, whether in a foreign county or in the county where the- judgment-was .rendered, would not extend the judgment lien beyond the seven years, and that with the expiration of the lien of the judgment the execution and levy fell with it, and all subsequent proceeding thereunder, as to bona fide purchasers or incumbrancers, was void. (Tenney v. Hemenway, 53 Ill. 97.; Gridley v. Watson, id. 186; Ewing v. Ainsworth, id. 464; James v. Wortham, 88 id. 69; Scammon v. Swartwout, 35 id. 343; Conwell v. Watkins, 71 id. 492.) It was also'held, under that statute, that when the execution issued on the. judgment within one year after its rendition, although the lien of the judgment was lost at the end of seven years from its rendition, yet an alias execution could be issued •thereon, after the seven years had expired, at anytime within twenty years, and levied, upon any property the debtor might own, and a sale thereunder would be valid. Stripling v. Prettyman, 57 Ill. 371; Priest v. Wheelock, 58 id. 114.

- Section 1 of:the act of, 1872 provides that a judgment of a court of record shall be a lien, etc., “from the time the same is rendered or revived, for' a period of seven years, and no longer. ” The section then provides that if execution be not issued within a year, it shall cease to be a lien, etc.; but that portion of it is not material to be considered here. Section 6 of the act provides that no execution shall issue upon any •judgment after the expiration of seven years from the time the same becomes a lien, except upon revival of the same by scire facias, “but real- estate.levied upon within said seven ■years may be sold, upon a venditio rei exponas, at any time ,within one year ■after -the expiration .of said seven years.” By this section, if a levy was made within the seven years, the levy and execution no longer, as under the former law, -cease to have vitality, as against subsequent incumbrancers ■or purchasers, when the seven years expire, but one year is given in which to sell the property to satisfy, the execution; and the time within which the sale may be made, as against the judgment debtor, is limited to one year after the expiration of the seven years.

It will be seen, then, that the substantive thing sought to be attained by the latter clause of that section was the extension of the right, in all cases, to satisfy the judgment by sale of the property levied upon during the seven years, but remains unsold at its expiration, after the seven years had expired, and to limit the right to make such sale, in all cases, to one year after the expiration of said seven years. The real object to be attained was to so change the law that a limited time should be given after the period fixed by the statute for the lien of the judgment had elapsed, in which to dispose of the levy and satisfy the judgment by sale of the property levied upon, and thereby give a more just rule, and relieve from the supposed defects already pointed out in the prior law. To accomplish this purpose the legislature employed the language of the latter clause of section 6,—“but real estate levied upon within said seven years may be sold, upon a venditio rei exponas, at any time within one year, ” etc. The difficulty here arises solely from the words, “under a venditio rei ex-ponas, ” employed by the legislature, and it is contended that as it is by force of the statute alone that a judgment can be a lien upon lands, or that a sale of land on execution can be made, and that neither can receive any aid from the common law, to which they were unknown, the statute must be literally followed. It is true that the legislative will, as expressed in the act, must control, when it is ascertained according to the rules of construction. It is already seen that the object sought by this portion of the act was to give the right, in all cases where a levy had been made within the seven years, to sell the property levied upon to satisfy the debt for one year thereafter; but did the legislature intend, by the language employed, also to prescribe the particular mode in which it was to be made,—that is, to require that in all cages the sale should ■ be made under a venditioni exponas, and not otherwise ?

It is said by counsel, in argument, that this section of the statute is the first legislative recognition of the writ venditioni exponas in this State. However that may be, it had long been in use in this State as a common law writ, and this court, as early as the ease of Phillips v. Dana, 3 Scam. 551, and again in Bellingall v. Duncan, 3 Gilm. 477, defined the office of this writ, and held it to be the proper writ to be issued to compel a sheriff to sell property previously levied upon under an execution, .and which he failed for any reason to sell. A writ venditioni exponas is said to be properly defined as the writ which compels an officer to proceed with the sale of property levied upon under a fieri facias. Phillips v. Dana, supra; Bouvier’s Law Dic. 621; Herman on Law of Executions, sec. 35; Bellingall v. Duncan, 3 Gilm. 477; Freeman on Executions, secs. 57-59.

It is said by Freeman in his work: “The venditioni exponas was so frequently used as to create the impression that it was a writ of authorization as well as of compulsion, and was necessary to enable the officer to proceed with the sale. Such is not the fact. It gave the officer no authority not previously possessed by him. If he was willing to proceed, the issue of this writ was a clear superfluity. ” Herman, in his work on Executions, sec. 215, says: “A vendi. confers no power or authority on an officer which he did not possess under the execution. It only commands him to do what he could have done under the execution. The execution is the effective writ, and the officer may sell under it without a vendi.

The effect of a sale under this writ is the same as though it had been made under the original writ before its return day. The lien of the original writ and levy continues. The vendi. creates no lien and gives no authority, and the sale, when made, relates back to the levy of the execution. By it the officer is ordered to complete what he had begun under the fieri facias. Freeman on Executions, supra; Herman on the Law of Executions, supra; Bellingall v. Duncan, 3 Gilm. 477; Taylor v. Mumford, 3 Humph. 66 ; Holmes v. McIndoe, 20 Wis. 657; Doe v. Hays, 4 Ind. 177; Badham v. Cox, 11 Ired. 460. At common law, it-applied only .to-the sale of goods and chattels, ,and when a writ of f. fa., had been‘issued", and the sheriff returned that he had levied but "the goods remained in his' hands for want of buyers, a.writ venditioni exponas, might be sued out to compel a ’.sale of the goods at any price. (Bouvier’s Law Dic. supra; Tidd’s Prac. 1068.) .This was "the recognized and known office of this writ when the legislature enacted .the statute under consideration.

This court', in Dobbins v. First National Bank of Peoria, 112 Ill. 553, in commenting, on this provision, held that thereby .the legislature have extended a lien, by virtue, of. the levy of •the execution, during" the .year succeeding .the, seven years'. In the opinion of the court, in that case, it is s'aid':. “It seemS :to follow, that if execution be issued within a year from the ■entry of judgment, the judgment becomes ■ a lien for seven years; and if land be levied upon by a valid execution within seven years, it may be sold upon a venditio rei exponas,— with like effect either before the seven- years (expires,) or at any time within one year after the end of the seven years.” And in discussing the question of how long the lien created by the levy of an execution lasts,.the court say: “The statute does not expressly say; but when, in that connection, 'it is ■ said that real estate levied upon within seven years after the .judgment becomes a lien, may be sold at anytime within one year after the expiration of said seven years, it is plain this lien of an execution was intended, in such case, to be kept alive for that time, to make such lien effective. ”

: We. are aware that this precise question was-not before the .court in that ease, but we think the reasoning by which the conclusion last quoted was reached is satisfactory., ' The legislature have not, by any words in the act, attempted to define the character or office of the writ, or to extend or enlarge its powers, and it will require no citation of authorities to snstain the position that the legislature will be presumed to have understood the- purpose, function and character of the writ venditio rei exponas, and to have adopted it with reference to its well defined character and powers. In this case the levy was made within seven years from the rendition of the judgment, and the sale made within the lifetime of the execution, by the sheriff, without the compulsory process, the sole office of which, if issued, would have been to compel him to do what; he was already willing to do,—that is, to complete the execution of his- fi. fa. by the sale of the property levied upon. The return day of the writ had not elapsed, and, as we have seen, the lien created, by the levy was continued, to make it effective. To hold, under such circumstances, that the legislature intended, by the language employed, to require the return of the execution simply for the purpose of suing out a venditio rei exponas,—to put the execution again in force,—“to compel the officer to do what he might have done under the execution -before the- return day, ”—is to overlook ■and disregard the substance of what the legislature sought to accomplish by the enactment of this statute, and give effect to the mere form by which it may be accomplished. No doubt many, cases will arise where the.sheriff, for some cause, may refuse or be unable to sell under the execution, and the suing "out of the compulsory writ become proper and necessary; but we are of opinion that under the facts in this ease the sale might lawfully be made by the sheriff under the execution, without the formality of returning it and the suing out of "the writ venditio rei exponas, and that having done so, a deed thereunder, otherwise valid, will convey the title of the defendant in execution.

The circuit court therefore erred in refusing to admit the sheriff’s deed offered by appellant in evidence, and for this error the judgment must be reversed, and the cause remanded to the circuit court for further proceedings.

Judgment reversed.


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    George Watson v. The City of Chicago.

      Filed at Ottawa November 14, 1885.

      1. Special assessment—local improvement—in 'cities—mode of paying the cost—who shall determine. Sections 116 and 117 of the “Act to provide for the incorporation of cities and villages, ” vests in the city councils the sole power to determine, by ordinance, what portion of the total cost of a local improvement shall be paid by the public, and their determination in this respect is conclusive.
    2. Same—an ordinance construed as to what part of the cost of a local improvement shall be paid by the city. An ordinance of a city for the construction of a sidewalk on both sides of a street between given points, provided that the improvement “shall be made and the cost thereof paid for by special assessment, to be levied upon the property benefited thereby', to the amount that the same may be legally assessed therefor, and the remainder of the cost to be paid by general taxation, in accordance with article 9 of an act to provide for the incorporation of cities and villages:” Held, that the words, “to the amount the same may be legally' assessed,” meant to the amount the property might be benefited by the improvement, and under such ordinance the public was required to pay the remainder, only', of the cost thereof, and that the commissioners could not increase or lessen such amount by estimate of what proportion of the whole cost would be of benefit to the public.
    3. Same—ordinance, whether embracing two improvements. An ordinance for the construction of a sidewalk on both sides of the same street is not invalid, as embracing two separate and distinct local improvements. In such case the construction of the sidewalk on one side of the street is of more or less benefit to the property on both sides of the street.
    4. Same—proportionate share of cost—how ascertained. On an application for the confirmation of a special assessment upon a lot for benefits by the proposed construction of a sidewalk, a party objecting to the assessment as to his lot, asked of a witness this question: “Of the total cost of §639.54, what would be the proportionate share of the cost of the improvement that a particular block — block 10 — would sustain?” when the court remarked, “ Counsel will be allowed to state and make comparisons between the amounts assessed against the property mentioned in said question, and the amounts assessed against all the lots and tracts assessed.” The counsel rejected the modification, and the question was not answered: Held, that the limitation by' the court, of the question, was correct, the proper inquiry being as to the proportionate share of the amount assessed against all the property', and not the total cost of the improvement.

      . Appeal from the County Court of Cook county; the Hon. Bichabd Prendergast, Judge, presiding.
    Mr. John H. Hamline, for the appellant.
    Mr. F. S. Winston, Corporation Counsel, and Mr. E. J. Bareness, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This is an appeal from a judgment of confirmation by the county court of Cook county, of a special assessment levied at the instance of the city of Chicago, upon certain property of appellant, George Watson, and other property, to pay for the cost of constructing a sidewalk on both sides of Bryson street, from Leavitt street on the east, to Western avenue on the west, in the city of Chicago. The total cost of the improvement was $639.54. The proportion of the cost assessed by the commissioners making the assessment, upon the property benefited, was $589.05, and the proportion of benefit to the public, and assessed to the city of Chicago, was $50.49. To the assessment, as returned, appellant filed objections. Upon the trial in the court below the jury found that the premises of the objector were not assessed more than they would be benefited, nor more than their proportionate share of the cost of the improvement. A motion for a new trial, made by the objector, was overruled, and a judgment of confirmation entered by the court.

The first point made by the appellant is, that the evidence shows his property would not be benefited by the proposed improvement. The evidence upon the subject was conflicting. The assessment roll was in evidence, which contained the estimate of benefits to the property, of the three commissioners appointed by the court to make the assessment. Several real estate dealers, besides, were called as witnesses, and testified that the construction of the sidewalk in question would benefit the property. The jury passed upon the question, and found against the appellant, and we do not see in this record any cause to disturb their verdict.

It is next urged1 that the court erred in excluding answers to certain questions put to'witnesses. All but- one of these questions called for an expression of opinion, in some form, by the witness, in regard to the amount assessed against the city as public benefit,—whether the total cost of the improvement had been so apportioned by the commissioners between the property specially benefited and the city, so that each should bear its relative equitable proportion. The ordinance of the city council in this case provides that the improvement “shall be made and the costs thereof paid for by special assessment, to be levied upon the property benefited thereby to the amount that the same may be legally assessed therefor; and the remainder of the cost to be paid by general taxation; in accordance with, article 9 of ‘An act to provide for the incorporation of cities and villages.’ ” Section 116 of the City and Village act, (Rev. Stat. 187-1, page 232,) provides,* “that the corporate authorities of cities and villages-are hereby vested with power to make local improvements, by special assessment, or by special taxation, or both, of contiguous property, or general taxation or otherwise, as they shall by ordinance prescribe.” And by the 117th section: “When any such city or village shall, by ordinance, provide for the making of any local improvement, it shall, by the same ordinance, prescribe whether the same shall' be made by special assessment, or by special taxation of contiguous property, or general taxation, or both.”

■ It will thus be seen that the city council is- solely vested with power to determine what portion of the total cost of a local improvement shall be paid by the public. It herd exercised that power by the ordinance in question providing that the public should pay all in excess of benefits to the property benefited, as we construe the ordinance. The commissioners, under the ordinance, are to assess to the property “the amount that the same may be legally assessed therefor, ” —that is, the amount of benefits to the property, as the property may be legally assessed to that amount. If this amount equals the cost of the improvement, there is nothing for the public to pay; and so there would be no apportionment to be made by the commissioners, under section 139 of the City and Village act, between the public and the property benefited, so that each should bear its relative equitable proportion, —at least, no other than that fixed by the common council. The city council has determined what the public shall pay, and this is binding upon the commissioners. If the amount of the special benefits does not equal the cost of the improvement, then the 'remainder of the cost is to be paid by general taxation; and it is only this remainder which the city council has determined shall be paid by general taxation, and this determination must control the commissioners in their action, under the 139th section, and they can not add to or lessen such amount by estimate of what proportion of the total cost will be of benefit to the public. The provision of the section in this regard does not apply where the city authorities fix the amount to be paid by general taxation. See Enos v. City of Springfield, 113 Ill. 65.

This question was passed upon by this court in Fagan v. City of Chicago, 84 Ill. 231, where there had been an assessment under this form of ordinance, and on the trial, on confirmation of the assessment, the court had excluded the question what proportion of the total cost of an improvement would, in the opinion of the witness, be of benefit to the public. We there said: “This question was wholly irrelevant. The court was not -trying, nor was it authorized to try, what, if any, benefit the improvement would confer on the public. That was a question which belonged to the city government, and could not be reviewed by the trial court. ” The correctness of this decision was recognized in Bigelow v. City of Chicago, 90 Ill. 53. And see City of Galesburg v. Searls, 114 Ill. 217.

It is thought by counsel there was error in the decision in the Fagan case in confusing the privilege of the city council of deciding how much of the cost shall be raised by special assessment and how much by general taxation, with the duties of the commissioners, under section 139, in making the assessment. But where the ordinance provides how much of the cost shall be paid by general taxation, as we hold this ordinance did, then that is to be the amount which is so to be paid, and neither more nor less. Now, if the commissioners were to estimate what the ¡niblic benefit would be, and fix it at a different amount from that provided by the ordinance as to be raised by general taxation, then the commissioners, and not the city council, would be determining the amount to be raised by general taxation, for the amounts assessed to the public as public benefits are paid out of general taxes. The determination of the city council by the ordinance in question was controlling in the matter of what was to be paid by the public, as held in the Fagan case.

The other excluded question was: Of the total cost of $639.54, what would be the proportionate share of the cost of the improvement that a particular block (block 10,) would sustain ? Upon asking the question, the court remarked: “Counsel will be allowed to state and make comparisons between the amounts assessed against the property mentioned in said question, and the amounts assessed against all the lots and tracts assessed.” The counsel rejected the modification, and the question as propounded was not answered. It follows, from what has been said, that the court’s limitation of the question was correct. The proper inquiry was as to the proportionate share of the amount assessed against all the property, and not of the total cost of the imjn’ovement. (See Bigelow v. City of Chicago, supra.) We find no error in the exclusion of the question asked.

A further point is made, that the ordinance is invalid and the assessment void because the ordinance combines in one proceeding two improvements treated as one. The ordinance provides for the construction of a sidewalk on both sides of Bryson street, from Leavitt street to Western avenue, a quarter of a mile in distance. It is said: “The sidewalk on the north side is one distinct improvement, having no connection, physically, with the benefits it will confer on property to be benefited by the sidewalk on the south side of Bryson street. Each sidewalk confers peculiar and distinct benefits. ” Each sidewalk confers peculiar benefits, and so it does common benefits, to a greater or less extent, to property on both sides of the street. To constitute one improvement it is not necessary there should be physical connection between different portions of it. The improvement here was upon one and the same street, and being upon its two sides only, by the building of a sidewalk, and not an improvement of the street in its entire width, did not constitute two improvements.

The judgment will be affirmed.

Judgment affirmed.


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    Abbie L. Waterman v. Philander M. Alden et al.

      Filed at Ottawa November 14, 1885.

    1. Administration—distribution of personal property in kind. Section 93, chapter 3, of the ¡Revised Statutes, which provides that “if the sale of the personal property is not necessary for the payment of debts, legacies, or the proper distribution of the effects of the estate, the court may order that the property may be preserved and distributed in kind,” has no application to notes, accounts, or other choses in action, some of which are good and others doubtful or desperate. They are not the kind of personal property the statute contemplates may be sold for the payment of debts, etc., and which the court may order to be preserved and distributed in kind.

      2. If an estate consists of stocks which are not collectible, and which can only be realized upon by a sale, of government securities that will not fall due for many years, or notes or bonds amply secured on real estate, and which are of equal value, the sale of which is not necessary for the administration of the estate, the court, in the exercise of a sound discretion, might order such stocks and securities to be preserved and distributed in kind.
    3. Where a party dies testate, leaving no descendant or issue, and his widow renounces the provisions of the will, the court, if it has the power to order a distribution of notes, bonds, judgments and accounts between the widow and the devisees, can not exercise its discretion until after two years have elapsed from the granting of letters testamentary. The matter of ordering “the personal property” to be preserved and distributed in kind, is largely, if not exclusively, in the discretion of the court hearing the cause.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of De Kalb county; the Hon. C. W. Upton, Judge, presiding.
    Mr. C. C. Bonnet, and Mr. John L. Pratt, for the appellant.
    Messrs. Carnes & Denton, and Messrs. Wilson & Moore, for the appellees.
   Mr. Justice Scott

delivered the opinion of the Court:

•Abbie L. Waterman filed her petition in the county court of De Kalb county, on the 1st day of July, 1884, in which she represented she was the widow of James S. Waterman, deceased ; that her husband died on the 19th day of July, 1883, after he had made his last will and testament, and which, after his death, was duly admitted to probate. Respondents, Philander M. Alden and George S. Robinson, were named executors of his will by the testator, and on the will being admitted to probate they were duly appointed by the county court such executors, and took upon themselves the burden of such trust. The testator left no child or descendants of any child him surviving, and petitioner having renounced the provisions of the will in her favor, elected to take her share of the estate under the statute, which would be one-half of the real and personal estate remaining after the payment of all just debts owing by the testator. It appears the personal assets of the estate amounted to something over $400,000. These the executors classified, as was their duty to do under the statute, “good,” “doubtful,” and “desperate.” Claims to near the amount of $94,000, exclusive of- interest which had and would accrue, had been allowed against the estate. It also appears the personal estate consists mostly of notes, some of which are secured by mortgages, others are not; stocks and bonds, book accounts and judgments, some of which are “good,” some “doubtful," and others “desperate.” Petitioner represents that of the assets not more than $90,000 are “doubtful” and “desperate,” as appears from the inventory filed. But respondents now say that since the inventory was filed there has been a change,—one item of $60,000 or $75,000 would now be in the inventory differently. It also appears there has been divided $24,000, consisting of cash and stocks, between petitioners and the executors, under the order of the county court. It is also alleged in the petition, that after deducting the total amount of “doubtful” and “desperate” claims, and the amount of claims allowed against the estate, together with the amount heretofore distributed, there will remain a large amount of personal assets to be divided, and petitioner states she is willing to take her share of the personal estate in money, securities, mortgages, or other evidences of indebtedness due to the estate in kind, and asks the court to make an order upon the executors to so divide the estate. The county court denied the prayer of the petition, and its decision has been affirmed in the several courts through which the cause has come to this court.

The right to the relief which petitioner claims is thought to arise under section 93 of the act of 1872, which provides, “if the sale of the personal property is not necessary for the payment of debts, legacies, or the proper distribution of the effects of the estate, the court may order that the property may be preserved and distributed in kind. ” This section of the statute contains no warrant for the relief sought. It has really no application to such a case as is stated in.the petition. What the county court was asked to do was to order to be distributed notes and accounts and other ehoses in action. This the statute has not authorized to be done. That which the court may order to be “preserved and distributed in kind” is “personal property” the “sale of which is not necessary” for the settlement of the estate, or the payment of debts or legacies. The statute has made no provision for selling notes or accounts, except such as may be “doubtful” or “desperate.” No provision is made for selling credits that are readily collectible, and no such practice has ever obtained, for the simple reason no necessity for so doing ever existed. Of course, notes and other evidences of indebtedness may be classed as “personal property, ” but they are evidently not that kind of “personal property” the statute contemplates may be sold for the payment of debts or legacies, or the proper distribution of the effects of the estate, and which the court may order to be preserved and distributed in kind. If the estate consisted of stocks which are not collectible, and which can only be realized upon by a sale, or of government securities that, would not become due in many years, or notes or bonds amply secured on real estate, and which are of equal value, the sale of which is not necessary for the administration of the estate, the court, no doubt, in the exercise of a sound discretion, with which it is clothed by the statute in such matters, might order such stocks or securities to be preserved and distributed in kind. But that is not this case. Here, that which petitioner asks to have divided is notes and ehoses in action, some of which are “good,” and some “doubtful,” and others “desperate.” Unless the parties should agree upon a division of the assets, it is obvious the court could not compel a division. Surely the court could not determine what was good and what was not, so as to order a distribution that-would be equal and just. Any attempt to do so -would invblve the estate in inextricable difficulties.

But waiving the question raised, whether the statute has any reference to, distribution of notes and accounts, as is asked to be done by the petitioner, the facts in this record present no case, for the relief which the statute provides the court in its discretion may grant. Two years have not yet elapsed since the granting of letters testamentary to respondents, and so it can not yet be ascertained what amount of claims will be presented against the estate. As before stated, the personal estate consists mostly of notes, some of which are secured by mortgages, others not; of book accounts, judgments and other credits. Of these assets it can not be known with any degree of certainty what amount can be collected. The evidence is, that since the inventory was made the assets have materially changed, and one of the executors testified “one item of $00,000 or $75,000 would now inventory differently.” No copy of the will appears in this record, but it seems to be conceded one-half of the estate, after the payment of all claims against it, will remain in the hands of the executors in trust, to be distributed as the will directs. How that may be is not known to this court. It can readily be seen if the assets are to remain in the hands of the executors as trust funds, it would increase the difficulty of making any division, and this very fact may have induced the court to deny, in its discretion, the relief asked by petitioner. The matter of ordering the “personal property” to be “preserved and distributed in kind, ” is largely, if not exclusively, in the discretion of the court hearing the cause, and under the facts appearing in this record it was eminently wise to refuse a distribution of the assets of the estate in kind. If it were an original question in this court, no doubt the same conclusion would be reached.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.