author: Mr. Justice Craig

text:
    The Village of Hyde Park v. The Oakwoods Cemetery Association.

      Filed at Springfield May 14, 1886.

    1. Exempting cemetery grounds from the control of the municipality in respect to highways—the charter of a cemetery association construed.. An act amending the charter of a cemetery association provided that “no road, street, alley or thoroughfare shall be laid out or opened through” its grounds, “or any part thereof,” without the consent of its directors: Held, that the word “through,” was intended to mean the same as the word “over,” and the object was to prevent any part of the lands from being taken for road or street purposes.
    2. Same—effect of the general -Incorporation act of 1872, as operating to repeal such an exemption previously granted. An act amendatory of the charter of a cemetery association, passed in 18G7, gave the board of directors power to make improvements in the cemetery, or the streets adjoining the same, as they might deem proper, etc., and authorized the association to acquire lands, and subdivide the same into lots, and provided as follows: “And no road, street, alley or thoroughfare shall be laid out or opened through said grounds, or any part thereof, without the consent of the directors; nor shall any corporation now existing or hereafter created, be authorized to take, hold or possess any portion of said cemetery, by condemnation, without such consent.” Tho act of 1872 gave the power to village trustees to “lay out, establish, open, alter, widen, extend, grade, pave or otherwise improve streets,” etc., within their corporate limits. The cemetery grounds were within a village incorporated under the act of 1872: Held, that the exemption given to the association was not repealed by the general Incorporation law of 1872, but that the two acts might stand together.
    3. In such case, under the general law, all roads and streets in the village were placed under its control, except the lands of the association, and as to them, tho association had the exclusive control.

      4. Repeal of statutes—by implication. In the construction of statutes it is a well settled rule that a repeal by implication is not favored; and when two acts are seemingly repugnant, they shall be so construed, if possible, that the later one may not operate as a repeal of the former by implication. And a subsequent statute which is general, does not abrogate a former one which is particular.

      5. Eminent domain—legislative grant in restraint of the exercise of the right—whether of'binding force. The right of eminent domain is an element of sovereignty, and a legislative grant or contract iu restraint of a free exercise of this right is not binding on the State, and does not fall within the inhibition of the Federal constitution relating to laws impairing the obligation of contracts.
    6. Same—necessity for the exercise of the right, as a political question-, by whom to be determined. The necessity or propriety of exercising the right of eminent domain, is a political question, which belongs exclusively to the legislature to determine. Hence the legislature may properly withhold from municipal authorities the power to condemn land for public purposes, as against some other- body or corporation, on its lands already devoted to some other public use. It may confer power to exercise the right of eminent domain upon one corporation, in preference to the other.
    Writ of Error to-the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. George Willard, and Mr. George Driggs, for the plaintiff in error:
    The opening of a street along the boundary line of defendant’s grounds is not a violation of its charter prohibiting the opening of a street through said grounds.
    The charters of private corporations must be construed strictly against the corporators. Fertilizing Co. v. Hyde Park, 70 Ill. 639; Mills v. St. Clair County, 8 How. 569; Binghampton Bridge case, 3 Wall. 75.
    That the legislature is incapable of depriving the State of any sovereign right,—rand especially the exercise of the right of eminent domain,—and that franchises are subject to this right, see Mills v. St. Clair County, 2 Gilm. 197; Railway Co. v. Railway Co. 87 Ill. 317; Cooley’s Const. Lim. 281, 343; Illinois and Michigan Canal v. Railroad Co. 14 Ill. 316; Railroad Co. v. Railroad Co. 111 Mass. 125.

      Exemptions from the exercise of sovereign powers have, so far as we have been able to discover, been confined to taxation. Such exemptions are upheld upon the ground that they are contracts between the State and the corporators, based upon a consideration. State Bank v. People, 4 Scam. 303; Railroad Co. v. County of McLean, 17 Ill. 291; Neustadt v. Railroad Co. 31 id. 484; Railroad Co. v. Irvin, 72 id. 452.
    "Without the consideration, the exemption, so-called, would be void. Strictly speaking, therefore, the result is a commutation of, and not an exemption from, a right to tax. Hunsacker v. Wright, 30 Ill. 146; University v. People, 80 id. 333.
    Mr. Richard S. Thompson, for the defendant in error:
    There being nothing in the constitution of 1848, under which the act creating the Oakwoods Cemetery Association was passed, prohibiting the legislature of the State from providing a suitable burial place for the dead, and exempting it from the' right of town or village authorities to open roads, streets or thoroughfares through the same, the legislature had the power to grant the exemption contained in the charter in question, in the manner therein set forth. Lake View v. Cemetery Co. 70 Ill. 195.
    The legislature did not intend, by the general act for the incorporation of cities and villages, to authorize the village of Hyde Park to open streets or roads through the grounds of this cemetery association.
    The special act creating the cemetery association, and the amendment thereto, are not repealed by implication, through the general language used in the act under which the village of Hyde Park is incorporated, said last named act being a general law. Ottawa v. LaSalle, 12 Ill. 339; Sullivan v. People, 15 id. 233; Supervisors v. Campbell, 42 id. 492.
    The act granting the cemetery association the exemption from municipal control in respect to streets, etc., within its grounds, constituted a contract between the State and its corporators, which is within the provision of section 10 of article 1 of the constitution of the United States, prohibiting legislation impairing the obligation of contracts; and, so far as the act of 1872, for the incorporation of cities and villages, is susceptible of the construction claimed for it, to-wit, as authorizing the village trustees to condemn portions of said cemetery grounds for a public street without the consent of the directors of said association, said act is in violation of the constitution of the United States, and also in violation of section 14 of article 2, and of section 1 of the Schedule of the constitution of 1870, of the State of Illinois. Asylum v. New Orleans, 105 U. S. 368; Home of the Friendless, 8 Wall. 430; New Jersey v. Wilson, 7 Cranch, 166.
    A State can no more impair the obligation of a contract, by her organic law, than by legislative enactment, for her constitution is a law, within the meaning of the contract clause of the national constitution. Railroad Co. v. McClure, 10 Wall. 511; Trust Co. v. Debolt, 16 How. 429; Sedgwick on Stat. and Const. Law, 637. And the obligation of her contracts is as fully protected by that instrument, against impairment by legislation, as are contracts between individuals, exclusively. New Jersey v. Wilson, 7 Cranch, 164; Providence Bank v. Billings, 4 Pet. 514; Green v. Biddle, 8 Wheat. 1; Woodruff v. Trapnall, 10 How. 190; Wolf v. New Orleans, 103 U. S. 358.
    Mr. James P. Pvoot, also for the defendant in error.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a proceeding instituted by the village of Hyde Park, under the Eminent Domain act, in the Superior'Court of Cook county, to condemn certain lands, owned by the Oak-w'oods Cemetery Association, for a highway or street which had been laid out by the village.

The village of Hyde Park, as is conceded in the argument, is a corporation organized under the general act for the incorporation of cities and villages, approved April 10, 1872. The petition to condemn the lands was filed April 18, 1878, and the appearance of the cemetery association was entered October 7, 1878; but so far as is disclosed by the record, no steps were taken in the case until the 2d-day of December, 1885, when a motion ivas made to dismiss the petition, based upon an agreed statement of facts.

Under the facts embodied in the stipulation of-the parties, it appears that the Oakwoods Cemetery Association was incorporated under an act of the legislature, entitled “An act to incorporate the Oakwoods Cemetery Association, ” approved •February 12, 1853.. (Private Laws of 1853, p. 550.) The act provides, that the association shall have power to own property, not exceeding one hundred and sixty acres of land, for a cemetery, and .to survey and lay out the same into lots, suitable for the burial of the dead; that the proceeds arising from the sale of lots shall be applied to such improvements in the property as the directors may deem necessary and appropriate. The act also provides that all property and effects of the association shall be exempt from taxation. By an amendment to the act, approved and in -force March 7, 1867, (Private Laws of 1867, p. 227,) it was further provided as follows:

“Sec. 5. The said board of directors shall have power to make such improvements in the said cemetery, or the streets adjoining the same, as they shall deem proper, and may regulate and control” the improvements, ornaments, etc.
“Sec. 6. The said association may purchase and own lands for their said cemetery, not exceeding in all five hundred acres, and may subdivide the same into lots; and no road, street, alley or thoroughfare shall be laid out or opened through said •grounds, or any part thereof, without the consent of the directors ; nor shall any corporation now existing, or hereafter created, be authorized to take, hold or possess any portion of said cemetery, by condemnation, without such consent. ”

On January 21, 1S64, said corporation, having been duly organized, became, by purchase, the owner of the south-west quarter of section 23, township 38, range 14, east. On February 28, 1868, the said corporation became the owner, by purchase, of the undivided half of a piece of land immediately adjoining on the east, to-wit, that part of the west half of the south-east quarter .west of ■ the railroad, of section 23, township 38, range 14, east; and by a decree in partition, on July 2, 1881, in the circuit court of Cook county, the north acres of this last named tract was set off to said association, The lands purchased were occupied and used exclusively for cemetery purposes. Under the petition filed, the village of Hyde Park seeks to condemn, for the purposes of a public street, the east thirty-three feet of the tract of land first purchased, and the west thirty-three feet of the land acquired by the second purchase, as aforesaid.

In the Superior Court it was contended, that under section 6 of the act of March 7, 1867, supra,- the lands of the association were not liable to be condemned for public use by the village of Hyde Park. This view the court sustained, and dismissed the petition.

Before proceeding to a consideration of the question involved, it may be proper to state, that there are no graves on the line of the proposed street, nor has the land on the line been specially improved for burial purposes, the only improvement being a fence inclosing the lands, oh the line; between the two tracts owned by the association.

The power to open and extend streets is conferred on the city council in cities, and the board of trustees in villages, by paragraph 7 of section 62, chapter 24, of the statute entitled “Cities, Villages and Towns,” as follows: “Tolay out, establish, open, alter, widen, extend, grade, pave, or otherwise improve, streets, alleys, avenues, sidewalks, wharves, parks and public grounds, and vacate the same.” Under this section of the statute the village of Hyde Park claims the

right to condemn the lands described in the petition, while, on the other hand, the cemetery association claims", that under section 6, supra, the lands are exempt, and can not be taken for street purposes. It will be observed that the language of section 6 is not of doubtful meaning, and it is plain that it was the intention of the legislature, in adopting the section, to prevent the lands of the association from being appropriated to road- purposes without the consent of the directors of the .corporation.

There is no force in the suggestion that the proposed street does not violate the act because it may be constructed on the division line of two tracts of land, and hence it is not “laid out through the lands. ” The language of the act is, “no road, street, alley, etc., shall be laid out through said grounds, or any part thereof.” We think the word “through,” as here used, was intended to mean the same as the word “over, ” the obvious intention being to protect the cemetery lands, or any part thereof, from being taken for road or street -purposes.

If we are correct in the construction placed on .section 6 of the act, two questions remain to be considered: First, has that section been repealed or modified by the general law, which authorizes cities and villages to lay out and extend roads, streets, etc.; and second, had the legislature the power to exempt the property from the operation of the law of eminent domain, which has been conferred on the village.

If section 6 was repealed by the general act of 1S72, the repeal was by implication, as the general act does not, in any manner whatever, -allude to the act incorporating the association. In the construction of statutes, it is a rule of law well settled, that a repeal by implication is not favored; and where two acts are seemingly repugnant, they should, if possible, be so construed that the latter may not operate as a repeal of the former by implication. (Town of Ottawa v. LaSalle, 12 Ill. 339.) In the same case it was also held, that a subsequent statute which was general, does not abrogate a former statute which is particular. The act conferring the powers on the association was special, and, under the rule announced, was not abrogated by the general law. The act of 1872 confers general power to lay out and vacate roads and streets, on cities and villages, within their corporate limits ; but within the village of Hyde Park, by special act, the association had previously been authorized to acquire certain lands for a public purpose, and such lands, by the terms of the act, were not liable to be taken for road purposes. The two acts may stand together. Under the general law, all roads and streets in the village are under its control, except the lands of the association, and as to those lands the association has exclusive qontrol.

We now. come to the question whether the statute exempting the.lands acquired by the association from being taken for road or street purposes, was a valid enactment. It is claimed that the acts of the legislature creating the cemetery association, when accepted, and the purchase of lands under said acts, and the dedication of the same to public use, constituted a.contract between the State and the corporator's of the association, within the provision, of section 10, article 1, of the constitution of the United States, which prohibits legislation impairing the obligation of contracts. If this position was correct, it is plain that any future legislation authorizing the taking of the lands could not be sustained, as the legislature has no.authority to enact a law impairing the obligation of a contract. But.the rule invoked has no application to a case of this character. The right of eminent domain is an element of sovereignty, and a contract in restraint of a free exercise of this right is not obligatory on the State, and does not fall within the inhibition of the constitution of the United States. Cooley, in his work on Constitutional Limitations, (3d ed.) p.. 525, in the discussion of this question says: .“Any legislative bargain in restraint of the complete, continuous and repeated exercise of the right of eminent domain, is unwarranted and void; and that provision of the constitution of the United States which forbids the State violating the obligation of contracts, could not be so construed as to render valid and effectual such a bargain, which originally was in excess of proper authority. ” See, also, p. 343 ; Railroad Co. v. Railroad Co. 97 Ill. 506; West River Bridge Co. v. Dix, 6 How. 531.

There are cases where the State might bind itself, and where it would be powerless, under the provision of the constitution cited, to pass future laws relieving itself of assumed obligations; but this is not one of them. The State had no power to divest itself of the right of eminent domain, by any act it might pass which would prevent the exercise of that right in the future, wdien, in the opinion of the legislature, a case arose wherein the public interest demanded the exercise of the power. But while we hold that the State can not divest itself of the power of eminent domain, it by no means follows that the village of Hyde Park has the right to condemn the lands in question. The necessity of propriety of exercising the right of eminent domain is a political question,—one which belongs exclusively with the legislature to determine. (Chicago, Rock Island and Pacific Railroad Co. v. Town of Lake, 71 Ill. 333.) It is a question ivith which the courts have no concern, as it is not judicial. By keeping this principle in view, the question involved in this ease is freed from difficulty. Here, the legislature, believing that the public good to be secured was sufficient to authorize the cemetery association to take and hold the property involved, for burial purposes, conferred the power on the association; and in the grant it was provided, that the lands should be exempt from taxation, and that streets or highways should not be laid out through such lands. Under this power, the lands were taken and appropriated to a public use. Now, the legislature has never determined, by any subsequent act, that the right of eminent domain shall be exercised as to this property, and until such time as the State shall otherwise determine, the association has the clear right to hold the lands free from taxation, or the laying out of streets or highways through them. As was said before, the act of 1872, authorizing cities and villages to lay out streets, did not repeal section 6 of the act conferring certain powers on the association, and the only determination of the State that the lands in question shall be devoted to public use, is to be found in that act.

Eastern Railroad Co. v. Boston and Maine Railroad Co. 111 Mass. 125, is a case in point. In speaking on the question of eminent domain, the court there said: “It belongs exclusively to the legislature to determine whether the public benefit to be secured is sufficient to warrant the taking,—and this is not a judicial question. * * * The right itself may be delegated to corporate bodies, public or private; and when the enjoyment of two public rights would, to some extent, interfere, it is, in the language of Chief Justice Shaw, ‘for the legislature to determine which shall yield, and to what extent, and whether wholly, or in part, only, to the other; and such question will ordinarily be determined by the legislature according to their conviction of the greater preponderance of public necessity and convenience.’ ”

Here, two corporations are claiming the enjoyment of the exercise of the same right over the same lands. It was within the province of the legislature of the State to determine which one of the corporations should exercise the superior right and which shall yield. This the legislature has done. It has declared that the grounds of the cemetery association devoted to the burial of the dead, shall-not be taken and appropriated for the purpose of streets or highways,—that the superior right, for the good of the public, is in the cemetery association ; and that determination will have to prevail.

The judgment of the Superior Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Scott

license: Public Domain

text:
    William Wallace et al. v. Mary Reddick et al.

      Filed at Springfield October 6, 1886.

    1. Advancement—defined. An advancement is a giving by a parent to a child or heir, by way of anticipation, of the whole or a part of what is supposed the donee will be entitled to on the death of the party making it.
    2. Same—whether a gift to be considered an advancement—intention of donor, how to be shown—before and since the act of 1872. Prior to the act of 1872, whether a gift by a parent to a child was to be deemed an advancement, depended upon the intention of the donor, to be gathered from the attending circumstances.
    3. If the subsequent verbal declarations of an intestate ancestor are admissible at all to show his intention in making conveyances to his sons was to make advancements, yet if they were made to persons having no interest in the subject matter, and are reproduced long after his death, they will be regarded as a most unsatisfactory class of evidence.
    4. The proof, merely, of gifts of land by a father to a son, even prior to the act of 1872, is not alone sufficient to show they were intended as advancements.
    5. And in cases of intestacy since the act- of 1872 went into effect, gifts or grants made by the intestate to any of his children will not be regarded as advancements-unless they'are so expressed in-writing, or charged as such by him, or acknowledged in writing by such children.
    6. Same—effect of act of 1872 as to prior gifts. The act of 1872, relating to advancements, applies to advancements made prior to its enactment, in cases of subsequent distribution.
    Appeal from the Circuit Court of DeWitt county; the Hon. • Lyman Lacey, Judge, presiding.
    Mr. R. A. Lemon, and Messrs. Moore & Warner, for the , appellants:
    While under the statutes of some of the States a gift by a parent to a child is presumed to be an advancement, under the statute of this State such presumption does not arise; but on the- contrary, .before such a gift could be charged as an advancement, prior to the act of 1872, it was necessary to affirmatively show that it had been charged by the ancestor as such, and since the act of 1872 it is necessary, in order to give the gift the character of an advancement, to show that it is expressed or charged as such, in writing, by the intestate, or acknowledged, in writing, as such, by the recipient. Stats. 1833 and 1839, chap, on “Wills, ” sec. 123; Rev. Stat. 1845, chap. 109, sec. 128; Rev. Stat. 1874, chap. 39, sec. 7; Bishop v. Davenport, 58 Ill. 105; Builkeley v. Noble, 2 Pick. 337; Ashley, appellant, 4 id. 21; Bullard v. Bullard, 5 id. 527; Hall v. Davis, 3 id. 450.
    The declarations or admissions of a grantor, after the execution of a deed, are inadmissible to prejudice the grantee, and even in those States in which a gift by a parent to a child is presumed to be an advancement, it is necessary to affirmatively show it before the presumption can attach that the conveyance or transfer was a gift in fact; and the declarations or admissions of the ancestor, made out of the hearing of the person to whom, and after, the conveyance or transfer wras made, are not competent to show its character, or to show that a deed which recites that it was made for a valuable pecuniary consideration, was in fact simply made as an advancement. Rust v. Mansfield, 25 Ill. 336 ; Myers v. Kinzie, 26 id. 36; Bennett v. Stout, 98 id. 47; Simpkins v. Rogers, 15 id. 398; Hessing v. McCloskey, 37 id. 341; Dunaway v. School Directors, 40 id. 247; Hatch v. Straight, 3 Conn. 31; Bulkeley v. Noble, 2 Pick. 337; Arnold v. Barrow, 2 P. & H. (Va.) 1; Yundt’s Appeal, 13 Pa. St. 575; Bunkers. Green, 48 Ill. 243.
    Loose declarations by a parent, not made to a child, nor assented to by the latter, are not sufficient to prove advancements, wdiere the statute does not prescribe the evidence necessary to establish an advancement. Haverstock v. Sarbach, 1 W. & S. 390 ; Porter v. Allen, 3 Barr, 390; Yundt’s Appeal, 13 Pa. St. 575; Dudley v. Bosworth, 10 Hunt. 9; Hartwell v.

      Rice, 1 Gray, 587; Rumbley v. Stanton, 24 Ala. 712; Arnold v. Barrow, 2 P. & H. (Va.) l.
    The statute in relation to advancements in force at the time of the death of the grantor, Col. Wallace, governs the decision of this case. Simpson v. Simpson, 114 Ill. 603.
    Mr. John T. Hillard, and Messrs. Fuller & Monson, for the appellees:
    In this State a gift to a child, made in the lifetime of the intestate, is prima facie an advancement, if made prior to the act of 1872. Grattan v. Grattan, 18 Ill. 170; Cartwright v. Wise, 14 id. 417; Bay v. Cook, 31 id. 336; Fleming v. Donahoe, 5 Ham. (Ohio,) 253; Dutch’s Appeal, 57 Pa. St. 461; Storey’s Appeal, 83 id. 95.
    The great weight of authority is, that the declarations and statements of an intestate are competent to show that gifts from him to his children were advancements. Cline v. Jones, 111 Ill. 563; Speer v. Speer, 14 N. J. Eq. 240; Dutch’s Appeal, 57 Pa. St. 461; Woolery v. Woolery, 29 Ind. 254; Watkins v. Young, 31 Gratt. 84; Meeker v. Meeker, 16 Conn. 383; Galbraith v. McLain, 84 Ill. 379; Kershaw v. Kershaw, 102 id. 507.
    The advancements in this case are proved, not only by the declarations of Col. Wallace, the intestate, but by the deeds themselves, showing on their face that the consideration was love and affection, and nominal considerations; by the further fact that each son received about the same amount, and the daughters nothing, and other circumstances which will be more fully specified further on. Outside the statements of Col. Wallace, the facts and circumstances establish the advancements, according to the following cases: Hatch v. Straight, 3 Conn. 31; Speer v. Speer, 14 N. J. Eq. 240; Parks v. Parks, 19 Md. 323; Dutch’s Appeal, 57 Pa. St. 461; Cleaver v. Kirk’s Heirs, 3 Metc. 270.

      The statute in force when the advancements were made, governs. Hapgood v. Whitman, 10 Mass. 437; In re Fuller, 79 Ill. 99; Thompson v. Alexander, 11 id. 54; Bruce v. Schuyler, 4 Gilm. 221; Marsh v. Chestnut, 14 Ill. 223; Cline v. Jones, 111 id. 563.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

Andrew.Wallace died intestate December 25, 1874, seized in fee simple of the lands described in the bill. Esther Wallace, his widow, survived him, but has since departed this life, so that the lands of which the intestate died seized have descended to his heirs-at-law as an absolute and unincumbered estate. There were seven children—four daughters and three sons—born unto the intestate, some of whom died before his death occurred. All of the sons and one daughter are now dead. The bill in this case was filed by the surviving daughters and the representatives of the deceased daughter, against the personal representatives of the deceased sons of the intestate, for the partition of the lands of which the'intestate died seized. It is alleged, the intestate made no advancements to either of his daughters, but that he did make advancements to each of his sons, of lands particularly described, the value of which, it is charged, is far in excess of what the sons or their heirs should receive from his estate. The answer admits the death of the intestate, and that the heirs and the rights of the parties are correctly stated in the' bill, except as to the matter of advancements. It is denied the sons of the intestate were advanced, and it is denied that any conveyance of land to the sons from their father was received by them as an advancement, or charged to them as such by their father. A general replication filed, put these material allegations of the answer at issue. On the final hearing, upon the evidence submitted, the circuit court found advancements had been made to two-of . the sons in excess of the share of the estate of the intestate that they would otherwise have been entitled to; and as to the other son, it was found the advancement to him was not equal to his share in the estate, and for the deficit, provision was made in the decree, and the residue of the estate was directed to be divided among complainants according to their respective interests therein, as set forth in the bill,

It is seen, it is denied the conveyances of lands by the intestate and his wife to the ancestors of defendants were made as advancements, but it is asserted that each and every conveyance was made upon valuable considerations, and not’ in any manner or way as an advancement to the grantees named in the several deeds. It is upon these denials of the allegations of the bill in that respect that the whole controversy hinges. Questions of fact and law are therefore involved. The case naturally falls into two parts: First, whether any advancements were made to the ancestors of defendants, either in lands or other property, by the intestate; and second, can such advancements be charged against any interest defendants might otherwise have had in the lands sought to be partitioned.

As respects the first branch of-tha-case, it is, of course, a •question of fact whether any advancements, of lands were made to either- son;- and - concerning which the evidence is by no means either clear or satisfactory. Most of the deeds to the sons bear date back of 1856. One is dated March 9, 1842, two or three in 1850, and others still later, and one perhaps as late as 1861. It will be observed that in all of the deeds, except perhaps one, it is recited such deed was made upon a money consideration. In some instances the consideration is nearly or quite equal to the value of the land at that early date, but.in others the consideration stated is evidently below the real value of the lands.-' There is nothing in the deeds, save the one, that indicates the conveyances were made either as gifts or advancements. Whether a gift by a parent to the child was to be'deemed an advancement, depended upon the intention of the donor. It seems to have been so held in all the decisions rendered in this State prior to the act of 1872 on the subject. What is an-advancement ? It is the giving by a parent to the child or heir, by way of anticipation, the whole or a part of what' it is supposed the donee will be entitled to on the death of the party making it. The very act of making an advancement implies the exercise of judgment,—intention to do a thing that may have a future effect. In the making of a gift, no exercise of judgment as to results that may follow in the future is involved. It is therefore more accurate to say, that whether a gift is to be deemed an advancement, under the law as it was prior to the act of 1872, depended upon the inténtiori of the party making it, to be gathered from the attending circumstances. As before stated; neither deed made by'the intestate show's the land conveyed was intended as a mere gift, with the possible exception of one dated January 25, 1861, and it may be confidently stated, none of them show the land conveyed was intended as an advancement. Resort is had to subsequent verbal declarations to show the intention of the intestate ancestor in making the several conveyances to his sons. Most of the declarations proved were made to persons having no interest whatever in the subject matter of the conversations, and now, long years after they were uttered, and long since the death of the party making them, they are reproduced as testimony. If it be conceded such declarations are competent evidence, it is certainly a most unsatisfactory class of testimony.

It is proved the common ancestor made gifts of land to his sons, but it can hardly be said there is any satisfactory evidence he intended such gifts should be, in whole or in part, of what he supposed the donees would be entitled to out of his estate at his death. It appears, on the marriage of the daughters, small gifts were made to each of them, in property, or what W'as thought to be its equivalent in money. It was never intended these, gifts should be deemed advancements, nor were they ever charged to the daughters as such. It may be the intestate made gifts to his sons, both of money and land, much larger and more valuable than anything he bestowed upon his daughters. It is a matter well understood, that a belief existed in the common mind, as it had been incorporated in the constitutions of many peoples centuries ago, that the sons were entitled to “a double portion of the inheritance.” Happily that- doctrine has ceased to be regarded either as law or a rule of action, or even as common justice. Under that common understanding that had obtained over many minds the consistency of law, it may be the intestate made larger gifts to his sons than to his daughters, and intended to do so in accordance with his notions of justice, however erroneous that notion may have been, and with not the slightest intention to cjiarge them with such gifts as advancements.

Taking the most probable view of the testimony, it establishes no very strong equities in favor of complainants, and certainly it- is not shown by any testimony entitled to any great weight, even if admissible at all, that the intestate made gifts to his sons, by anticipation, of the whole or a part of what he supposed would be the share of the donees in his estate when it should be distributed among his heirs.

But the reversal of the present decree may be placed on a ground that seems to be unanswerable. It does not appear the gifts or grants it is claimed were made by -the intestate to the ancestors of defendants-were expressed or charged in writing to-be advancements, nor were they so acknowledged in writing by the donees.to be advancements. Section 7 of the act of 1872, in regard to the descent of property, declares : “No gift or grant shall be deemed to have been made as an advancement unless so expressed in:writing, or charged in writing, by the intestate, as an advancement, or acknowledged in writing by the child or other descendant.” In Simpson v. Simpson, 114 Ill;. 603, it was objected, this statute did not apply to the case then being considered, for the reason the advancements were made in 1855, which was long before the passing of the act; but it was distinctly ruled, this statute in relation to advancements applies to advancements made prior to its enactment, in case of subsequent distributions. It was then-said: “No rights of the son’s-children, he being then living, were affected by the passage of the act, with its application to advancements theretofore made. Such children had then, in their father’s lifetime, no rights to be affected.” This whole matter of descent of property is within legislative control. Heirs apparent and prospective distributees, during the ancestor’s lifetime, have no vested rights in his estate, nor in the laws of descent. Accordingly, it is held the application of a statute changing the rules of descent of property impairs no vested rights. This statute is not in terms made prospective in its operation. It seems to have been intended to apply to all advancements, no matter when made, 'for it is said, no gift or grant “shall be deemed to have been made in advancement” unless expressed, charged or acknowledged in writing. It was entirely competent for the legislature to so provide. The application of the statute to advancements heretofore made, impairs no vested rights of complainants. Recognizing, as must be done, the controlling authority of the doctrine of Simpson v. Simpson, supra, it is conclusive as to analogous questions in the case being considered. ' The gifts or grants alleged to have been made to the ancestors of defendants were never expressed or charged by the intestate as- advancements, nor acknowledged by the donees as such, and the statute is imperative no such gift or grant shall be deemed an advancement unless so expressed, charged or acknowledged in writing.

The decree of the circuit court will be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Decree reversed.


author: Mr. Justice Mulkey

text:
    The People ex rel. Attorney General. v. Frank S. Murphy.

      Filed at Springfield March 27, 1886.

    1. Attorney at law—malconduct, such as to justify the striking of the name of an attorney from the roll. A promissory note for $300, with a credit indorsed thereon for $200, was placed in the hands of an attorney at law for collection. The attorney procured a judgment upon the note, in the name of his client, before a police magistrate, for $135.08. After having collected on this judgment over $100, the attorney withdrew the note from the magistrate’s hands, and, procuring an assignment of the note to himself from the payee, his client, the attorney instituted a second suit upon the same note, in his own name, before another justice. There were several makers of the note, but there was no attempt to bring any of them into court to answer to this second suit, except one, and upon him service was had while he was in a state of extreme drunkenness, and this fact was known to the attorney in whose name the suit was brought. There being no appearance, judgment was taken by default against the party served in the manner mentioned, for $183.68, when there was due under the first judgment less than $40. Execution issued upon the second judgment having been returned nulla bona, a transcript was filed in the office of the clerk of the circuit court, upon which execution was issued, which was levied upon a town lot owned by the defendant in the execution. The lot was sold, and the attorney-plaintiff became the purchaser. Of these proceedings the owner had no notice. Afterwards, the attorney sold and conveyed the lot to innocent parties, for $1250: Held, that this was such malconduct on the part of the attorney as authorized this court to strike his name from the roll of attorneys.
    2. Same—failure to pay over money collected—ground of disbarring. An attorney at law collected money belonging to his client, under an agreement for a certain fee in full, which.he failed to pay over on demand by the administrator of his client, and tender of his fee, the attorney falsely claiming that his client had agreed to phy him what his services might be reasonably worth. The attorney obtained the payment of the debt to himself under false pretences, and by placing upon the record of the court a paper purporting to be an assignment of the decree to him, the whole circumstances showing bad faith on his part: Held, sufficient misconduct to require the striking of his name from the roll of attorneys.
    3. Same—contract between attorney and client, construedr—fee depending upon the result of the suit. A contract between an attorney and his client stated that the former “agrees to give his services as an attorney in the case of” his client “against C and D, foreclosure, now pending in * * * for $150, if he wins or succeeds in obtaining a foreclosure of said mortgage, and is not to charge anything for his services unless he does succeed in the premises:” Held, that the attorney thereby bound himself to obtain a valid decree of foreclosure for the fee named, and that his undertaking was not discharged by obtaining a decree which was afterwards reversed on appeal or error.
    4. Construction op contract—as given by the parties. It is a familiar rule of construction, that when the terms of an agreement are in any respect doubtful or uncertain, and the parties to it have, by their own conduct, placed a construction upon it which is reasonable, such construction will be adopted by the courts in the event of litigation concerning it.
    This .was an information or complaint filed by the Attorney General, in this court, against Frank S. Murphy, an attorney at law of 'this State, seeking to have his name stricken from the roll of attorneys. The material facts of the case are fully stated in the opinion of the court."
    Mr. George Hunt, Attorney General, for the People.
    • Mr. Fred. A. Willoughby, and Mr. F. F. Cooke, for the defendant.
   Mr. Justice Mulkey

delivered the opinion of the Court:"

On the 5th day of January, 1884, the Attorney General filed, in this court, an information against Frank S. Murphy, of Galesburg, charging him-with “malconduct” as ah attorney and counselor at law, .upon the filing of which a rule was entered against him.to show cause why his name should not be stricken from the roll of attorneys. The information, as originally filed, contained four counts, but subsequently a nolle prosequi was entered as to one, so there are now but three counts upon which issues of fact have been formed.

' Waiving all unnecessary verbiage, the information, as it now stands, charges .in substance—

First—That the defendant, on a certain day mentioned, entered into a contract with one Margaret Rafferty, now deceased, to foreclose and collect the" "amount due on a certain mortgage, for a.fee.of $150; that after the foreclosure of the mortgage, to-wit, on the 13th of March, 1880, he collected thereon $330, (amount of decree,) which, after demand made and tender of said fee, he refused to pay over to her administrators.

Second—That the defendant, while sustaining the relation of attorney to the relator, Matthias Loos, procured his intoxication, and while in that condition, caused him to be served with process to answer a demand in favor of said Murphy, which had already been settled, and, by reason of said Loos’ intoxication, obtained a judgment, by default, against him, under which he (the defendant) caused to be sold a certain lot belonging to the said Loos, and obtained a sheriff’s deed therefor.

Third—That while defending one J. Austin, in the Knox circuit court, on a charge of rape, the defendant induced said Austin to make an affidavit for a continuance on account of the absence of one Nelson West, a witness in said cause, alleging that said witness was not absent by the consent of the affiant, when, in truth and in fact, the said Murphy well knew said witness was absent by the consent of the said Austin, and of himself, also.

With respect to the third charge, the evidence is conflicting, and we are of opinion it is not sustained by the weight of the testimony. It is therefore unnecessary to take further notice of this branch of the case.

The facts upon which the second charge is based, are as follows: On the 16th of January, 1871, Matthias Loos and others executed a note for $300, payable to Jerry Sullivan, one year after date, with ten per cent interest. On the 1st of March, 1872, a credit of $200 was indorsed on the note. With this indorsement upon it, it was placed in the defendant’s hands for collection, who, as attorney for Sullivan, on the 6th day of July, 1872, before M. D. Cook, a police magistrate, recovered a judgment on said note, against John Loos, one of the makers, for $135.08. On the 15th of the same month, Matthias Loos was' made a party to this judgment, by scire facias. Within a short time afterwards, there was paid on this judgment, altogether, $100, leaving only a small balance of about $30 due upon it. During this entire transaction, Murphy was acting as attorney for Sullivan, the plaintiff in the suit. Notwithstanding the merger of the note in the judgment, so far as Matthias Loos was concerned, and notwithstanding the small balance due upon the judgment, the defendant, some time in September, 1875, called on the justice, and withdrew the note from the papers in the case, giving to the justice his own receipt therefor, and afterwards took an assignment of it from Sullivan to himself. On the 29th of November following, he recovered, in his own name, a second judgment against Matthias Loos, upon the same note, the latter judgment being for $183.68, when the balance due on the former judgment, including interest and costs, was less than $40. While this last suit was commenced against the other two makers of the note, as well as Matthias Loos, it is a significant fact there was no service had on either of the other parties, nor were any steps taken to make them parties to the judgment. An execution having been issued on this judgment, and returned nidia bona, a transcript of the proceedings was filed in the office of the clerk of the circuit court, whereupon an alias execution was sued out on the judgment, under which a valuable town lot belonging to Loos -was sold by the sheriff, and hid off by Murphy, who subsequently received a sheriff’s deed therefor. Matthias Loos having been beastly drunk at the time the last summons issued by the justice was served upon him, did not appear, and the judgment was entered against him by default. Nor did he know, as he testifies, anything about what had been going on, until after the defendant had sold the lot in question. On the 13th of February, 1879, the defendant sold the lot to Flinn & Merrick for $1250, they having no notice of Loos’ equities. The evidence, however, fails to show that Murphy procured the intoxication of Loos at the time he was last served with process. But there was no occasion to do this, for he was then, and had been for several days past, drinking to excess, and, from all the circumstances, the defendant must have known he was then in a drunken condition.

The material facts above stated, about which there is no room for dispute, speak for themselves, and we' leave them without a word of comment.

The facts relating to the other charge are as follows: In the summer or fall of 1S73, Michael Rafferty, as the agent of his mother, Margaret Rafferty, who was a resident of Iowa, employed the defendant to foreclose a mortgage, which she held against John Slattery. The suit was commenced without any understanding as to the amount of the fee. In the spring of 1871, Mrs. Rafferty, being then temporarily in this State, called on the defendant for the purpose of fixing the amount of his fee. This being done, she requested the terms of the agreement to be put in writing. The defendant thereupon prepared, and the parties signed, the following:

“Galesburg, March 20, 1874.
“Memorandum of agreement between F. S. Murphy and Margaret Rafferty:
“Murphy agrees to give his services as an attorney in the case of Margaret Rafferty against Ed. Slattery and E. Erickson, foreclosure suit, now pending in the circuit court of Knox county, 111., for $150, if he wins or succeeds in obtaining a foreclosure of said mortgage, and is not to charge anything for his services unless he does succeed in the premises. Mrs. Rafferty agrees to pay him that amount as of the date of commencing suit, if he succeeds.
F. S. Murphy,
Margaret Rafferty. ”

Under this agreement, as is shown by a decided preponderance of the evidence, the pending suit was prosecuted to a final determination. The case was tried twice in the circuit court, and the decrees, in both instances, were, on the appeal of the defendants, reversed by this court. On the cause being remanded the second time, a decree was entered in Mrs. Rafferty’s favor for $330, in accordance with a stipulation filed in the cause. This decree was paid by the attorneys of Slattery to the defendant, and no part of it has ever been paid over to Mrs. Rafferty or her legal representatives. It is true, the defendant claims that he has paid out a part of it on account of costs in the litigation, and the vouchers filed by him show that he has paid out, on that account, $90.35. On the other hand, the evidence shows Mrs. Rafferty paid him, pending the litigation, $164. No importance, however, is attached to the state of the account between the parties, in respect to the amounts advanced by her, on the one hand, and the costs paid by him, on the other, for it is clear, beyond all controversy, that after allowing him his fee of $150, and the full-amount of his claim on account of costs, there is still a balance in his hands due the estate, and his chief defence in the present proceeding is a tacit admisssion of this fact.

The defence is of a two-fold character: It is claimed, in the first place, that the defendant fully performed the agreement on his part when he obtained the first decree, and that, consequently, all his subsequent services were extra, and for which he should be allowed reasonable compensation. Failing to sustain this position, the defendant then contends, that after the reversal of the first decree in the case, he had a new understanding with Mrs. Rafferty, by which he was to be paid a reasonable compensation for his seiwices. As to the first point, the utmost that can be reasonably claimed is, that the agreement between the parties, judged by what appears upon its face, merely, is equivocal in the respect mentioned ; but when considered in the light of established facts, the construction contended for by him is wholly inadmissible. If, as sworn to by the defendant himself, the total amount of the mortgage was only between $400 or $500;'that at the time no defence was apprehended, and that according to his understanding he simply undertook to obtain a decree in the circuit court, and not to collect the money, upon what principle can the fee charged be sustained ? The fee, upon the hypothesis stated, would be simply unconscionable, and such a one as no lawyer having an ordinary sense of justice would think of charging. By the terms of the instrument it will he perceived the defendant “agrees to give his services as an attorney in the case * * * for $150, if he succeeds in obtaining a foreclosure” of the mortgage, “and is not to charge anything for his services unless he does succeed in the premises. ” By the use of these terms, he bound himself not merely to obtain a decree, but to obtain a foreclosure,—that is, a valid foreclosure,—one not based upon an erroneous decree, reversible on appeal or writ of error. That this was the understanding of both parties, and particularly of the defendant, is fully shown by his subsequent conduct. To say that he did not so understand the agreement, would be to convict him of the grossest fraud.

Unfortunately for the defendant, Michael Rafferty, through whom the defendant was first employed, and Patrick Collopy, an acquaintance of the parties, were both present when the subject of the fee was discussed and finally settled, as heretofore stated. Rafferty, in speaking of the matter, says: “It is not true, as Murphy states in his plea, that,the $150 named in the written contract was for his pay for the first trial, only. He was to fight it through- for that $150, and if he did not gain it he was to have nothing.' Murphy said he would not expect his pay until he got it out of the mortgage, and he would take it out of money collected of John Slattery. ” Collopy, in giving his account of the affair, says: “When the agreement for fees, between Murphy and Mrs. Rafferty, was made, I went up with the old lady to Murphy’s office, and Murphy told the old lady he would foreclose the mortgage for $150, and if he didn’t win the case it would cost her nothing. ” Upon these conditions lie- advised her to accept the defendant’s proposition, and she thereupon did so. The agreement, as he states, was then prepared by Murphy, and signed by the parties. That Murphy himself so understood the agreement, is shown by the further fact, as testified to by Patrick Collopy and Michael and Kate Rafferty, that after the case had turned out more troublesome than lie had perhaps expected, he, by himself and through others, appealed to Mrs. Rafferty to increase liis compensation, saying, he had undertaken the case for too small a sum, or words to that effect. Michael Rafferty and Collopy both testify, that at his request they called on Mrs. Rafferty, to see if they could induce her to allow him some additional compensation, and that she promptly refused to do so,—thus clearly showing that both of the parties to the agreement put the same construction upon it.

It is a familiar rule of construction, that where the terms of an agreement are in any respect doubtful or uncertain, and the parties to it have, by their own conduct, placed a construction upon it which is reasonable, such construction will be adopted by the courts, in the event of litigation concerning it. So far as the terms of the agreement in this case may be regarded as in any degree doubtful, this principle of construction by the parties themselves applies with peculiar force. It is true, the defendant denies that he requested Michael Rafferty and Patrick Collopy, respectively, to see if they could not get the old woman to increase his compensation, as sworn to by them. It is also true, that he denies making a direct appeal himself to Mrs. Rafferty for the same purpose, as sworn to by Mrs. Kate Rafferty; nevertheless, his main defence is based, as we have already seen, upon the claim that he had just such an agreement with her. Outside of the testimony of the defendant himself, there is not a fact or circumstance in the whole case that sustains this claim. The proof is positive, as we have just seen, that Mrs. Rafferty was spoken to on two different occasions, by two different persons, and finally by the defendant himself, for the purpose of getting her to agree to a change of the contract, or, in other words, to increase his compensation, and that in each instance she positively refused to do so. The last effort to accomplish this object, which v'as made by himself, was just as she was starting from this State the last time, and there is no claim that he ever saw her afterwards. The account which the defendant gives of this alleged new understanding in respect to fees, is as follows : “I told her, (Mrs. Rafferty) in substance, she must not expect me to carry this case through all the courts on the conditional fee. She said, for me to go on and it would be all right, or words to that effect,—that I should be paid reasonable fees. That is the way I understood it. ” It is worthy of remark that this reply of Mrs. Rafferty,” “to go on and it would be all right, ” is not at all such a one as she would probably have made. The evidence tends to show that she was close, and quite particular in money matters. This is well illustrated by her requiring the original contract between her and the defendant to be reduced to writing. Assuming the defendant made.the statement to her he claims he did, and that she concluded to entertain his proposition at all, which is very unlikely, as is shown by the testimony already alluded to, she would almost certainly have wanted to know what the additional expense would be, and to have had some distinct understanding about it. But it is still more difficult to understand the defendant’s own conduct in the matter. Assuming that he obtained from her a new agreement to pay him what his services were reasonably worth, in view of the fact the old agreement was still in her possession, common prudence on his part would have required the new one to be put in writing, or at least the old one to be surrendered and cancelled. But nothing of this kind was done. The truth is, the whole story, in the light of admitted facts, is highly improbable. Moreover, the testimony of Collopy, who should have been present at the time, is wholly inconsistent with this claim of the defendant. Additional reasons will presently appear, when we come to speak of another feature of the case, why this claim of the defendant can have no foundation in fact.

After obtaining the decree for $330, as heretofore stated, the legal representatives of Mrs. Rafferty gave John Slattery, defendant in the decree, notice not to pay the same to Murphy. Slattery thereupon notified Messrs. Williams, McKenzie & Calkins, his solicitors, of this fact. Murphy, on being informed by Mr. Calkins of the service of this notice, told Calk-ins that he had an assignment of record of the decree, from Mrs. Rafferty. This, upon an examination of the record, appearing to be true, Slatte'ry’s solicitors paid to Murphy the full amount of the decree, as heretofore stated. The assignment in question, and upon which the balance of the decree was paid to Murphy, was attached to the records of the circuit court, and when so attached, and at the time the money was so paid upon the faith of it, purported to be the original instrument, and it was so regarded at the time by Slattery’s solicitors in making the payment. But the instrument, as it now appears, has the word •“Copy,” written at the top of it, in the handwriting of Murphy. That this word was written there after the instrument was attached to the record, is proven beyond a reasonable doubt, and that it is in the handwriting of Murphy, is admitted by Murphy himself. His claim now is, that the word “copy” was there when the instrument was attached to the record, but in this claim he is absolutely overwhelmed by the testimony of other witnesses. The instrument was seen and carefully examined by three skillful attorneys before the word “copy” was written upon it, one of whom made out a literal copy of every word, figure and mark upon it, and by the assistance of one of the others the copy was carefully compared with the original, and found correct, and the copy thus prepared is now before us, and the word “copy” nowhere appears upon it. All three of these attorneys swear the word “copy” was not on the instrument when it was first- attached to the record. Besides this, the idea that an intelligent, careful attorney, who would decline to pay money to another without an exhibition of his authority to receive it, would pay it out upon a mere copy of the instrument purporting to confer such authority, is simply absurd. And it is just about as difficult to believe that one of the defendant’s intelligence and experience as a lawyer would offer such a copy for such a purpose. The copy of this alleged assignment is entitled in the foreclosure suit, and bears date June, 1875. It assigns to the defendant “the decree and claim,” to secure him “against cost, and also as security for his reasonable attorney fees in said cause.'” From the evidence before us, we can not repress the conviction that the so-called assignment has never had other than an ideal existence, and that the instrument now purporting to be a copy of it is a pure fabrication of the defendant. If the defendant, in June, 1875, obtained this assignment as a security “for his reasonable attorney fees,” why does he, in the fall of 1876,—some-thing over a year afterwards,—tell Mrs. Rafferty, as he swears he did, she must not expect him to go on under the conditional fee.first agreed on? Why does he, in his testimony, even now rely on her alleged reply to that statement of his, “Go on and attend to the ease, and it will be all right, ” to prove there was a change in the original agreement ? If the assignment be genuine, it establishes Mrs. Rafferty’s liability to pay reasonable attorney fees beyond all question, and there was not the slightest occasion for afterwards importuning her upon the subject, as-he himself admits he did. But this is not all. It appears from one of the defendant’s own letters, which he admits to be genuine, that on October 28, 1878, he wrote to Mrs. Rafferty, asking her to assign to him one-half of the decree. If he already had an assignment of the whole of the decree, why did he want an assignment of half of it ? It could have been of no earthly advantage to him. When asked to explain, he is unable to do so,—doesn’t remember anything about it. When asked to produce the original assignment, he can’t find it,—doesn’t think he has it,—thinks it was probably thrown by him into the waste basket.

With these facts before us, can we say that the defendant has not, in the language of the statute, been proven guilty “of maleonduct in his office” as an attorney of this court? Clearly we can not. We regret to say, that after a most careful consideration of the facts, wre find nothing to palliate, much less justify, the conduct of the defendant. An order will therefore be entered in this court striking the name of the defendant, Frank S. Murphy, from the roll of attorneys, and disbarring him henceforth from practicing law in any of the courts of this State.

Sltk macle absolute.

Mr. Justice Shops was not present at the consideration of this cause, and took no part in its determination.

Mr. Chibe Justice Scott : I do not concur.

Mr. Justice Craig not being present when the case was discussed, took no part.


text:
    Sater C. Comer v. Alice T. Comer et al.

      Filed at Springfield October 6, 1886.

    1. Advancement—evidence that a gift teas intended as an advancement—proof of intention necessary. Proof that a father has made gifts of lands, money or personal property to one of his sons, is not sufficient to prove an advancement. It must appear in some way that they were intended as advancements, before the child’s part in his father’s estate can be charged with them. The fact that the father has bestowed more upon one child than another, standing alone, will not be sufficient to charge such child with the excess.
    2. Casual statements of a common ancestor, made to persons having no sort of interest in the subject matter of the conversations, and at a time when not transacting any business in regard to the matters, offered to show that such ancestor had bought lands and had the title made to a deceased son as an advancement, if competent evidence, are entitled to but little weight.
    3. But if such declarations or statements were made in the presence of such son, they will be competent evidence against his heirs on the question of an advancement; but their character and force as evidence will be greatly weakened by the fact of the death of both the father and son, as the latter, if living, might explain the statements of his father.
    4. A person died intestate, seized of lands occupied as his homestead, leaving a widow and two sons, one married and the other single. The latter ■ thereafter remained upon the land with his mother for a period of over twelve years, during which time the married brother made no claim for any share of the premises or for an)' of the rents and profits: Held, that no importance could be attached to his failure to assert his rights as tenant in common, and that such fact afforded no evidence, by way of admission, that certain gifts of his father to him were advancements.
    5. Limitation—as between tenants in common. While the relation of tenants in common exists between two persons in respect to a tract of land inherited by them, the Statute of Limitations will not run against either in favor of the other.
    6. Witness—competency—of party against an heir. Where a party died seized of real estate, leaving two sons, his only heirs, one of whom dies intestate, leaving minor children as his heirs, who file a bill for partition of the lands against their uncle, and he sets up in defence certain alleged advancements made by his father to his brother, which he asks to have brought into hotchpot, the defendant will not be a competent witness, in his own behalf, to show such advancement, or to testify to any facts occurring before the death of the complainants’ father.
    7. Same--former decisions, distinguished. This case is to be distinguished from that of Pigg v. Carroll, 89 111. 203, holding the parties competent as witnesses in a suit for partition. There, the title of the ancestor ivas not disputed, while in this case the title of complainant’s ancestor is attacked and sought to be defeated.
    Appeal from the Circuit Court of Hancock county; the Hon. William Mabsh, Judge, presiding.

      Messrs. Manier & Miller, for the appellant:
    The rights of the parties must be determined by the law in force in 1867, when the common ancestor died. Woodworth v. Paine, Breese, 374; Jones v. Bond, id. 287; Sturgis v. Ewing, I8 Ill. 185; Cooley’s Const. Lim. secs. 359-362.
    In favor of equality and right, a gift from a parent to a child is presumed to be an advancement, liable to be rebutted. Taylor v. Taylor, 4 Gilm. 303; Brown v. Burke, 22 Ga. 574; Bay v. Cook, 31 Ill. 336; Wormley v. Wormley, 98 id. 544; Mitchell v. Mitchell, 8 Ala. 414; Hodson v. Macey, 8 Ind. 121; Lawrence v. Mitchell, 3 Jones’ L. (N. C.) 190; Clarke v. Wilson, 27 Md. 693.
    A purchase of land by a parent in the name*of a child is presumed to be an advancement, liable to be rebutted by facts and circumstances. Grattan v. Grattan, 18 Ill. 167; Maxwell v. Maxwell, 109 id. 588; Cartwright v. Wise, 14 id. 417; Smith v. Smith, 21 Ala. 761; Phillips v. Chappell, 16 Ga. 16; Dillman v. Cox, 23 Ind. 440; Autry v. Autry, 1 Ala. (Sel. Cas.) 542; Woolery v. Woolery, 29 Ind. 249; Butler v. Insurance Co. 14 Ala. 777; Page v. Page, 8 N. H. 187; Merrill v. Rhodes, 37 Ala. 449; Autry v. Autry, id. 614.
    When the debt of a child is paid by the father, in the absence of proof to the contrary such payment will be presumed to be an advancement. Johnson v. Hogh, 3 Head, 56.
    Holding the child liable to pay for the thing transferred, rebuts'the presumption of an advancement. Barton v. Rice, 22 Pick. 508; Harris’ Appeal, 21 Pa. St. 283.
    But the cancellation or surrender by the parent, of the evidence of the child’s indebtedness, is evidence of an advancement. Blanc v. Bertant, 16 La. Ann. 294.
    A deed from a parent to a child, expressed to be in consideration of natural affection, or upon that and a nominal sum, is presumptive evidence of an advancement. Newell v. Newell, 13 Vt. 24; Matherhead v. Field, 26 id. 665; Law v. Smith,
      2 R. I. 244; Speer v. Speer, 14 N. J. Eq. 240; Gordon v. Barkelow, 2 Halst. Ch. 94.
    On the question whether a gift was intended as an advancement, the acts and declarations of the parent, either concurrent or subsequent, may be shown as evidence, as well of his original intention as of his final purpose, Johnson v. Belden, 20 Conn. 322.
    As to the admissibility of the declarations of the ancestor, made after the deed or transaction, to show no advancement was intended, see Merrill v. Rhodes, 37 Ala. 449 ; Woolery v. Woolery, 29 Ind. 249; Milford v. Billingham, 16 Mass. 108; Hicks v. Gildersleve, 4 Abb. Pr. 1; Autry v. Autry, 37 Ala. 614; Lawson’s Appeal, 23 Pa. St. 85; Phillips v. Chappell, 16 Ga. 16; 14 Ala. 777.
    The declarations of an intestate, that certain notes-held by him on his son were not held as debts, but as advancements to the son, are admissible in evidence, in a suit by a grandchild for her share in the estate. Bransford v. Crawford, 51 Ala. 20; West v. Bolton, 23 Ga. 321.
    The declarations of a father, whether made at the time of the transaction or afterward, are competent evidence to prove the deed was intended as an advancement. It is a question of intent, and may be shown by the declarations of the parent or the admissions of the child. Speer v. Speer, 14 N. J. Eq. 240; Cline v. Jones, 111 Ill. 566.
    Whether a gift by a father to his child is an absolute gift or an advancement, depends upon the intention of the father; and his statements, made at the time of the gift or subsequently, are competent evidence to show what was his intention. Watkins v. Young, 31 Gratt. 84; 2 Phillips on Evidence, (C. & H.) 705.
    Messrs. Hooker & Edmunds, also for the appellant:
    Whether a purchase in the name of a child is an advancement or not, is a question of intention, though presumed, in the first instance, to be a. settlement or-advancement. -Story’s Eq. Jur. secs. 1202-1206; Wormley v. Wormley, 98 Ill. 553.
    It will be regarded prima, facie an advancement. Hill on Trustees, *97; Taylor v. Taylor, 4 Gilm. 303; Cartwright v. Wise, 14 Ill. 418.
    Gifts by a parent to a child are presumed to be advancements, unless it otherwise affirmatively appears. Grattan v. Grattan, 18 Ill. 169; Ray v. Loper, 65 Ho. 472.
    The question whether a gift is an advancement, being a question of the intention of the donor, anything he may have said, either in relation to the particular gift, at the time of making it, or after, or at any time when speaking of his family, heirs or estate, and his disposition and intentions in relation thereto, are competent evidence in aid or rebuttal of the presumption of an advancement, and to show the real intention with which such gifts were made. Speer v. Speer, 14 N. J. Eq. 240, and cases there cited; Cline v. Jones, 111 Ill. 563.
    Messrs. Mack & Bated, for the appellees:
    The admissions and declarations of Samuel Comer are inadmissible to prove the alleged advancements, but are proper as evidence against the appellant. 1 Greenleaf on Evidence, secs. 189, 190.
    The declarations of a parent, made to third parties, are not admissible to prove the fact of an advancement. Kennedy v. Kennedy, 57 Mo. 53; Ray v. Loper, 65 id. 472; Darrier v. Darrier, 58 id. 222; Rings v. Richardson, 53 id. 395; Hanup v. Hanup, 49 Ind. 384.
    Since Samuel Comer and appellant are privies, the declaration of one is, in legal effect, that of the other, and entitled to the same weight. 1 Greenleaf on Evidence, secs. 23, 189 and 19Ó.
    That appellant was incompetent to testify in his own behalf, see Rev. Stat. chap. 51, sec. 2; Boynton v. Phelps, 52 Ill. 219; Bachman v. Allwood, 71 id. 162; Alexander v. Hoffman, 70 id. 117; McCann v. Atherton, 106 id. 31; Ferbrache v. Ferbrache, 110 id. 210.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

The bill in this case is for partition. It appears, from the admission of all parties, that Samuel Comer died July 20, 1867, leaving two sons, Sater C. and Sylvester L. Comer, his only heirs, and Harriet Comer, his widow. Sylvester L. Comer died March 3,1879, leaving his widow, Alice A. Comer, and Harriet L. Comer, Samuel IT. Comer and Frank G. Comer, his children and only heirs-at-law. Afterwards, on the 25th day of April, 1883, Harriet Comer, widow of Samuel Comer, died. It is also conceded, that at the time of his death the legal title to the lands described in the bill was in Samuel Comer. It seems that after the death of Samuel Comer, his widow, Harriet, with her son Sater, continued to occupy the lands sought to be partitioned, up until the time of her death, which occurred at the date above stated. Shortly after the death of the widow, and after the lands thereby became freed from any claim of homestead and dower on her part, this bill was filed by the widow and heirs-at-law of Sylvester L. Comer, deceased, against Sater C. Comer, for partition of the lands of which Samuel Comer died seized, as described in the bill. The bill was filed on the 8th day of August, 1883. . But for the defence sought to be made, there could be no complaint made as to the justness of the present decision. As before stated, there is no question made as to the fact the legal title to the lands described in the bill was in Samuel Comer at the time of his death. His only heirs were his. two sons, Sater C. and Sylvester L. Comer, and by the decree one-half of the lands is to be assigned to his surviving son, and the other half to the legal heirs of his deceased son, subject to the dower of their mother. But the partition is resisted on the ground, as stated in the answer, that Samuel Comer, at the time of his death, was also seized of either an equitable or legal title to three tracts of land other than the lands described in the bill, the legal title to which appeared from the record to be in Sylvester L. Comer, since deceased, at the time of the death of his father; that Sylvester L., several years prior to the death of his father, executed a deed conveying to him these three tracts, and delivered the deed to him, but that the deed was never recorded; that during the last illness of his father, and shortly before his death, Sylvester L., without the consent of his father, possessed himself of such deed and carried it away; that the three tracts were purchased and paid for by Samuel Comer, and the title thereof taken to said Sylvester L.; that Sylvester L. paid no part of the purchase money therefor, but held the naked legal title thereof for the benefit of his father; that in this partition proceeding the title of these three tracts should be found and decreed to have been in Samuel Comer at the time of his death, or to have been held by Sylvester L. as an advancement by said Samuel to said Sylvester L., and, in either event, that the same be brought into hotchpot, and the rights of all the parties in all such premises be by the court determined in this cause. Defendant therefore denies Sylvester L. became, upon the death of his father, seized in fee of one-half of the premises, as in the bill described, as therein stated. Defendant states that Samuel Comer purchased 22Tjj-v acres, and paid therefor $2750, the fair price thereof, and caused the same to be conveyed to Sylvester L. as an advancement; that Sylvester L. soon after took possession thereof, and that he and his family have remained and continued in possession thereof since; that the same should be brought into hotchpot in this cause. Defendant says he is entitled to one-half of all the land in which Samuel, at his death, had an interest, either legal or equitable, including the three tracts above described, the legal title of which stood of record in Sjdvester L. at the death of his father; also, of all the personal property owned by Samuel, and advancements made by him to Sylvester. Defendant also admits that his father madé advancements to him, both in real and personal property, and he offers to bring the cost or proceeds thereof into hotchpot, with the other property hereinbefore mentioned, and advances made to Sylvester L., as before stated, to the end that the whole may be divided and partitioned between the parties to this suit, according to their respective interests in all such property and advances.

Other matters are alleged in the answer, but it will not be necessary to make any statement of them to an understanding of the matters in contention. Issues, by replication, were formed on the matters alleged in the answer, but the court, on the final hearing, seems to have found the defence insisted upon was not established, and decreed a partition of .the lands described in the bill, between complainants and defendant, as their interests are therein stated. Defendant brings the case to this court on appeal.

One ground of error insisted upon is, that the trial court erred in rejecting and in refusing to consider proper evidence on the part of defendant. On the hearing in the circuit court, defendant was examined, and testified at length in his own behalf, and it'is said in argument, “it seems the court, on the final hearing, rejected his testimony. ” This record has been subjected to a careful examination, and it is not discovered that the court either rejected or refused to consider the testimony of defendant. It' seems complainants objected to defendant giving testimony on his own behalf, for the reason they sued as heirs of a deceased person; but the record at that time discloses no ruling of the court in regard to it. But conceding it is true, as counsel suggest, the court did reject and refuse to consider the testimony given by defendant on his own behalf, there was no error of law in the ruling in that respect. Under the statute (Bev. Stat. 1874, chap. 51, sec. 2,) he was clearly incompetent. Complainants sue as the heirs of their deceased father. It was the estate that was in their deceased father they had sued for and were endeavoring to recover. This case is wholly unlike Pigg v. Carroll, 89 Ill. 205, and subsequent cases on the same subject, where the parties in interest and to the record were held to be competent witnesses in their own behalf. In those cases, the parties litigating held a title derived from the same identical source, and the litigation concerned property it was conceded belonged to the parties to the suit. But here, the title that was in the ancestor of complainants is disputed, and his minor heirs are endeavoring to maintain the right that was in him. That brings the objection to defendant’s testimony precisely within the exception mentioned in the section of the statute cited.

But it is as to the merits of the case the chief difficulty is met with. It is certain, however, the theory advanced in the answer as to the three tracts of land of which Samuel Comer, at the time of his death,, was the equitable owner, notwithstanding the legal title was in the ancestor of complainants, has very little, if anything, in its support in the evidence, or elsewhere in the record. The legal title to neither of these tracts of land Avas e\Ter in Samuel Comer. One tract was bid off at a tax sale to him, but he assigned the certificate of purchase to his son Sylvester, to Avhom the deed was ultimately made. The title to the other lands all came to Sylvester from other persons, and not from his father. It does not appear the deed Syl\Tester made to his father was ever intended to take effect. It Avas not made a matter of record, and Avas taken back by Sylvester. So far as anything is proved in respect to the making of this deed, it is, that it was not intended it should ever take effect, and it seems both parties must have so understood it. It may therefore be taken as true, that neither the equitable nor the legal title to these lands was in Samuel Comer at the time of his death. The questions of most difficulty are, whether Samuel Comer bought these lands, and caused them to be conveyed to his son Sylvester by way of advancement, and whether he should he now charged with the cost of the same as so much money advanced to him at the times mentioned. The evidence on this branch of the case is most unsatisfactory. After rejecting, as must be done, the testimony of defendant, much of that which remains consists of casual statements of the common ancestor, made to persons having no sort of interest in the subject matter of the conversations, and at a time when he was transacting no business in regard to the subjects of the present controversy, and hence, even if conceded to be competent, is always most unsatisfactory and unreliable evidence. Some of the statements alleged to have been made by the common ancestor were made in the presence of his son, since deceased, and as to this evidence no objection c^uld be sustained as to its competency, but its character is much weakened by the fact both parties whose declarations are given in evidence are now dead. Had Sylvester survived, he might have been able to give some reasonable explanations of the statements made by his father in his presence. The benefit of such explanations, which would have been most valuable, is now, of course, lost.

This record is quite voluminous, and it would be a work of great labor to go through and comment on the testimony of each witness bearing directly or remotely upon the subject of the controversy. It would answer no good purpose to do so, and it will not be done. It will be sufficient to state the conclusions reached.

Undoubtedly the common ancestor dealt generously with his two sons. He rendered assistance to them, and no doubt bestowed gifts upon them of considerable value. This much is admitted by defendant, and he offers, by answer, to bring into hotchpot what he received from his father. It does not appear, however, that he ever intended to, or did, charge them with the gifts he made to either son as an advancement, as that term is used in the statute. At most it was a mere presumption. Prior to the act of 1872, a gift made by a father to his son was an advancement. Like any other presumption, it might be overcome by evidence, and, most generally, slight evidence was regarded as sufficient. All the decisions in this State hold, it was a question of intention whether a gift from a parent to a child was an advancement, under the law as it was prior to the act of 1872. It is not every gift that a parent may make the child that is to be construed as.an advancement. It should appear, in some way, it was intended as an advancement, before the child’s part will be charged with it. A father may bestow more upon one of his children than another; but that fact, standing alone, will not be sufficient to charge such child with the excess, in the final distribution of his intestate estate. In this case, whether Samuel Comer gave one of his sons more than the other, is not a question that heed be considered. It is not proved that he intended to make advancements, in the technical sense, to either of them. The kindly assistance which was no doubt rendered to both sons, by way of property and money, is not to be, and ought not to be, construed as advancement. On the whole evidence considered, the decree is right, and ought to stand. Certainly there is nothing in the record that would warrant a reversal of the decree on the merits of the case.

A period of over twelve years elapsed from the death of Samuel Comer before this bill for partition was brought, and that, it is said, indicates that Sylvester, in his lifetime, acquiesced in the right of defendant to the exclusive ownership of the property of which their father died seized. But little importance need be attached to this fact in the case. The brothers were tenants in common of the lands that descended to them from'their deceased" father, and, of course, no statute of limitations would bar relief while that relation existed. It is not so insisted. It is, at most, insisted, Sylvester, in his lifetime, acquiesced in the alleged ownership of defendant. The position taken can not be maintained. The fact the widow and mother of the heirs resided upon these lands with her son, the defendant, and had a right of homestead and dower in the same, affords a reason why Sylvester never commenced proceedings for the partition of the estate. The bill was filed by complainants. in a few months after the death of the widow, which relieved the property from the right of homestead and dower. This fact may or may not be the reason why proceedings were not sooner instituted for a division of the estate. But there is another view that may be taken. It is an admitted fact that Samuel Comer died seized of these lands, and, of course, they descended, in equal proportions, to his sons, subject to the dower of their mother. The legal title to an undivided one-half of the lands confessedly stood in Sylvester from the death of his father until his death, which did not occur until 1879, and then descended to his heirs, the present complainants. If, during that long period of twelve years or more, defendant claimed to be the exclusive owner of the lands of which his father died seized, subject only to the homestead and dower rights of his mother, why is it that he took no steps to compel a conveyance to himself of the legal title that was in his brother? Nothing of the kind was done, and it does not appear defendant ever demanded a conveyance from his brother, by bill or otherwise. Nor does it appear that any claim of exclusive ownership was ever put forth to the entire property until since the death of Sylvester. The delay suffered in no way sustains the claim now put forth by defendant. It rather operates against the assertion'of it since the death of the ancestor of complainants, who could have defended against it, in his lifetime, with a fuller knowledge of the facts than his heirs can now possibly do.

The decree of the circuit court will be affirmed.

Decree affirmed.


author: Mr. Justice Scholfield

text:
    The East St. Louis Connecting Railway Company v. The People ex rel. M. T. Stookey, Collector.

      Filed at Mt. Vernon January 25, 1887.

    1. Taxation of railroad property—assessment by the Slate board-jurisdiction of the county court to review the same. Under the statute, the valuation for taxation of the main and side-tracks of railway companies is committed to the State Board of Equalization, and no appeal lies from its decision to the county court when acting on .applications for judgment for taxes, or at any other time.
    2. So on such an application for judgment, the county court has no jurisdiction to hear and determine an objection that the valuation of the property is fraudulently excessive, and no power to inquire into the assessment made by the State Board of Equalization, or to reduce the same; and proffered evidence that the valuation is grossly excessive, is properly refused.
    3. Same—impeachment of the assessment made by the State board— upon what grounds. The decision of the State Board of Equalization in fixing the valuation of railroad property for the purpose of taxation, is judicial in its nature, and can only be assailed for fraud or want of jurisdiction.
    4. Ordinarily, the fraud which may be urged against an assessment, must, in general terms, have either consisted in a willful disregard by the members of the board of equalization of a known duty, for the purpose of producing a result which could not otherwise have been produced, or in their denying or preventing the tax-payer from doing something that he might .lawfully have done, and but-for being denied and prevented by them would have done, which would or might have had the effect to cause a lower valuation of the property to be made.
    5. No mere discrepancy in judgment as to the value of property, between the members of the board of equalization and the judge of the county court, however gross, can be sufficient at law to impeach the valuation of the board.
    6. Allegation of fbatto—of its proper elements. Fraud being a conclusion of law, it is incumbent on one who wishes to set it up to defeat an assessment of property for taxation, to state the facts relied upon as constituting the fraud. An offer to prove it should be of facts and circumstances, and not of the fact of the existence of fraud, generally.
    Appeal from the County Court of St. Clair County; the Hon. W. J. Underwood, Judge, presiding.
    Mr. Charles W. Thomas, for the appellant.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was an application by the treasurer of St. Clair county, to the county court of that county, for judgment for delinquent taxes. Appellant interposed a written objection to the application, to the effect, that the valuation of the property upon which the tax was levied, was fraudulently excessive, to the extent of six-tenths on the main track, and five-tenths on the side-track, of appellant’s railroad.

The bill of exceptions recites as follows: “The said objector proved, by competent testimony, that it had paid to the collector four-tenths of the taxes on its main track, and fivé-tentlis of the taxes on its side-track, as described in the application for judgment and in the objections, and offered to prove that the assessment of the said main track, so far as six-tenths of the same was concerned, was so grossly excessive and oppressive as to be fraudulent, and that the assessment of the said side-track, so far as five-tenths of the same was concerned, was so grossly excessive and oppressive as to be fraudulent; but the court refused to permit the proof that the same was fraudulently assessed,—and to this decision of the court the said objector at the time excepted; and then the court held, as matter of law, that it had no jurisdiction over the subject matter of said objection, and no power to inquire into the assessment, or reduce the same,—and to this action and decision of the court the objector at the time excepted; and then the court overruled the said objection, and gave judgment for the whole of the unpaid taxes, as applied for,— and to this action and decision of the court the objector at the time excepted.”

We perceive no reason to disagree with the views thus expressed by the judge as to the jurisdiction of the county court. Under the statute, the valuation, for taxation, of the property here affected, is committed to the'State Board of Equalization. No appeal lies from its decision to the county court, when acting on applications for judgment for delinquent taxes, or at any other time. Its decision is judicial in its nature, and it can therefore only be assailed for fraud or want of jurisdiction. Spencer et al. v. The People, 68 Ill. 513; Porter v. Rockford, Rock Island and St. Louis Railroad Co. 76 id. 561.

Obviously, the fraud which may be urged against the assessment, must, in general terms, have either consisted in a willful disregard, by the members of the board, of a known duty, for the purpose of producing a result which could not otherwise have been produced, or in their denying or preventing the tax-payer from doing something that he might lawfully do, and, but for being denied and prevented by them, would have done, which would or might have had the effect to have caused a lower valuation of the property to be made. No mere discrepancy in judgment as to the value of the property, between the members of the board of eqtialization and the judge of the county court, however gross, could be sufficient, at law, to impeach the valuation of the board. We have held, that on the ground, only, of a valuation being excessive, a court of equity, even, will not interfere to restrain the collection of a tax, and that to justify such interference, the property must have been fraudulently assessed at too high a rate. Gage v. Evans, 90 Ill. 569, and cases there cited.

Fraud is a conclusion of law, and it is therefore incumbent on the party who would set it up, to state the facts relied upon as constituting it. Kerr on Fraud and Mistake, (Bump’s notes,) 366; Fitzpatricks v. Beatty et al. 1 Gilm. 454; Jennings v. Carter et al. 2 Wend. 450; Sturtevant & Keeps v. Ballard, 9 Johns. 342. There was no offer, here, to prove any circumstance, except the excessive valuation of the property. This was not sufficient to give the court authority to act on the question.

The judgment is affirmed.

Judgment affirmed.