author: Mr. Chief Justice Sheldon

text:
    Henry E. Hamilton et al. v. The Chicago, Burlington and Quincy Railroad Company et al.

      Filed at Springfield March 28, 1888.

    1. Dedication—by plat for streets—acceptance in order to pass the fee—conveyance of lots before acceptance—where the fee resides. In order to make a complete dedication of streets and alleys by the making, acknowledgment and recording of a town plat, the acceptance of the municipal corporation is necessary. Until acceptance, the fee does not vest in the corporation, but remains in the original proprietor.
    2. A conveyance of lots upon a street by the original proprietor, where there has been no acceptance by the corporate authorities of the streets marked upon the recorded plat, will carry title to the center of the street. The fee in the street, not absolutely, but as burdened by the offer of dedication, will pass to the grantee.
    3. Where no acceptance was ever made of streets and alleys attempted to be dedicated by a plat of a town properly executed and recorded, and before vacation of the plat and streets, the proprietor of the town conveyed to purchasers all the lots and blocks indicated on the plat, it was held, that the title to the streets, although never having vested in the corporate authorities, did not revert to the original proprietor, but passed to those parties succeeding to the title to the lots.

      4. Same—former decisions. The statements made in Canal Trustees v. Havens, 11 Ill. 556, Hunter v. Middleton, 13 id. 54, and Gebhardt v. Reeves, 75 id. 301, to the effect that the making and recording of a town plat, showing streets thereon, passed the title to the streets to the municipal corporation, are to be regarded as stating the effect of a statutory dedication, without deciding what will constitute such a dedication. There must besóme act showing an acceptance, before the fee in the streets will pass.

      5. Pasties—in ejectment—new party defendant—when proper. A person who has made a conveyance of land with a warranty of title, is properly-admitted as a co-defendant in an action of ejectment against his grantee, with the party holding under him.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    This was an action of ejectment. The premises sought to-be recovered are described in the declaration, as follows: “All those parts and portions of May street, Canal street, Hamilton street and Owen street, as laid out upon a plat of Canalport, which plat was recorded in the recorder’s office of Cook county, December 4, 1835, in book ‘H,’ at page 163, and which said parts and portions of said streets are now embraced within lots 22, 23, 24, 25, 26 and 27, in block 11, as laid down upon the plat of S. J. Walker’s dock addition to Chicago, as recorded in the recorder’s office of said Cook county.”
    The- plat of Canalport referred to was made by Bichard J. Hamilton and Hiram Pearsons, in 1835. It covered and subdivided into lots and blocks about three hundred acres in section 30, township 39, on both sides of the west branch of the south branch of the Chicago river. The land subdivided was low prairie land, intersected with sloughs of wet ground, and two miles from the inhabited part of Chicago. The plat showed one hundred and nineteen blocks, a large number of which were subdivided into lots, and numerous streets, having a length in all of about ten miles. In the same, or the year following, Hamilton and Pearsons made a second map, which covered the same ground and also extended over about one hundred acres adjoining. The second plat, as to the property covered by the first plat, was, in its general outline of lots and blocks, the same as the first. It differed, however, in certain material particulars. This second map was never acknowledged, but was lithographed and extensively circulated. Hamilton and Pearsons sold lots and blocks from time to time with reference to both of these plats. None of the various streets were at .any time opened or improved, or otherwise used by the public, but the land continued to be for many years an open and unoccupied prairie.
    In 1848 a toll-road was opened and planked from Chicago to Blue Island. This road was called the Blue Island Plank Road. It crossed the land shown on the plat of Canalport, in a south-westerly direction, crossing the various platted streets diagonally, until near the river, where it followed for a short ■distance, westerly, one of the platted streets, known as Canal street, thence across the river, by a bridge constructed by the plank road company, to the section line, and on the section line to Blue Island. The road was built by a private corporation, and was used as a toll-road.
    In 1842 Hiram Pearsons was adjudged bankrupt, and such remaining interests as he had in Canalport vested in his assignee, and these were subsequently sold and conveyed by the assignee to various parties. In 1853, Samuel J. Walker, by ■contract and deed, acquired from Richard J. Hamilton such remaining interest as he claimed to have in the various lots and blocks in Canalport, and became, through other conveyances, the principal, and, ultimately, the sole owner of the property. At the time Walker acquired this title (1853) the land was .still vacant prairie, except a few pieces of ground ■occupied by squatters. There were no evidences of any street or public road on the entire tract, except the Blue Island Plank Road. In 1856, and subsequently, a portion of the land was occupied by tenants of Walker for the purpose of making brick. In 1862 he leased the entire tract to one Henry T. Jones, who took actual possession of the particular land in controversy, and other land, for the purposes of a brick-yard.
    Hamilton and Pearsons had sold lots and undivided interests in many lots to different persons, and the original plan of improvement contemplated by the plat never having been carried out, the legislature, in 1865, passed an act entitled “An act to authorize the vacation, re-subdivision and partition of Canalport, in Cook county.” This act provided, that on petition of the owners of a majority in number of the lots in the subdivision, the circuit court might appoint three commissioners to vacate the plat, and re-plat and subdivide the town, and make partition among the owners. In 1869 this act was amended, by conferring like powers on the Superior Court of Chicago. No action seems to have been taken under these laws.
    In May, 1871, an ordinance was passed by the common council of Chicago, vacating that portion of the plat of Canal-port north of the west branch of the south branch of the Chicago river, which embraces the lots and streets in question. By its terms, the ordinance was not to take effect until the premises were re-platted in accordance with a plat annexed to the ordinance, and a plat “showing the same should be placed upon record, dedicating to the public use the streets, alleys, and portions of the same, as shown on said annexed plat.” Subsequently, in the years 1871 and 1873, Walker made new subdivisions of the property, known as “S. J. Walker’s dock addition to Chicago,” “S. J. Walker’s second dock addition,” and “Beaper’s addition to Chicago.” Plats of these subdivisions were duly acknowledged and recorded. They showed, as dedicated to the public use the various streets required to be dedicated by the vacating ordinance. A comparison of the original plat of Canalport with the present subdivisions shows that these strips, called streets, in controversy, run diagonally to the street and lot lines in the new subdivisions. The various streets shown on such subdivisions have been opened and improved by the city.

      The lots of which the particular property in controversy are a part, viz., lots 22 to 27, in block 11, S. J. Walker’s dock addition to Chicago, were occupied as a brick-yard by Henry T. Jones, as tenant under Walker, from 1862 to 1881, when the property was sold to the defendant, the Chicago, Burlington and Quincy Bailroad Company. In the same year the company leased the same to the defendants, James B. and Charles S. Thompson, and Stephen C. Hall, who took possession of it under the lease, and were occupying it as a lumber yard when this suit was brought, December 10, 1882. The plaintiffs are the heirs of Bichard J. Hamilton and Hiram Pearsons, who made the original plat of Canalport. Hamilton died in 1860, and Pearsons in 1868.
    The claim on which the suit is based, is, that the plat of Canalport was a statutory plat; that the fee of the platted streets vested in the city, in trust for the public, and that when the ordinance purporting to vacate the plat was adopted, the fee to the streets shown on it reverted to the plaintiffs, as the heirs-at-law of Hamilton and Pearsons. In the court below the case was submitted to the court for trial, without a jury. The court found for the defendants, and rendered judgment accordingly, from which the plaintiffs have appealed to this court.
    Messrs. Edsall & Edsall, Mr. John B. Hawley, and Mr. Telford Burnham, for the appellants:
    The plat of Canalport was a-statutory plat, and the fee of the streets therein was vested in the city of Chicago, in trust, for the use of the public. Rev. Laws of 1833, p. 599; Lee v. Town of Mound Station, 118 Ill. 304; Gebhardt v. Reeves, 75 id. 301.
    No form of certificate of acknowledgment was prescribed by the statute, and a substantial conformity to its provisions is sufficient. Lavalle v. Strobel, 89 Ill. 371; Dock Co. v. Russell, 68 id. 426; Gebhardt v. Reeves, 75 id. 301; Town of Lake View v. Le Bahn, 120 id. 92.

      By the acknowledgment and recording of the plat, under the statute, the fee of the streets vested in the city of Chicago, in trust, for the use of the public. Rev. Laws of 1833, p. 599, sec. 4; Village of Brooklyn v. Smith, 104 Ill. 429; Gebhardt v. Reeves, 75 id. 301; Canal Trustees v. Havens, 11 id. 554; Lee v. Town of Mound, Station, 118 id. 304; Hunter v. Middleton, 13 id. 54; Waugh v. Leech, 28 id. 488; Morgan v. Railroad Co. 96 U. S. 716; Town of Lake View v. Le Balm, 120 Ill. 92.
    There was no title to the streets in the proprietors of Canal-port, during the period intervening between the acknowledgment and recording of the plat and its vacation by the city, which could he conveyed by them, or which would pass to their assignees in bankruptcy. Gebhardt v. Reeves, 75 Ill. 301; Kuch v. Rock Island, 97 U. S. 993; 3 Washburn on Real Prop. (4th ed.) 94, 348.
    When the city vacated and abandoned these streets, the fee thereto reverted to the plaintiffs in error, as the heirs-at-law •of the original proprietors. Gebhardt v. Reeves, 75 Ill. 301; Canal Trustees v. Havens, 11 id. 556; Hunter v. Middleton, 12 id. 54; St. John v. Quitzow, 72 id. 336; Town of Lake View v. Le Bahn, 120 id. 92; Kuch v. Rock Island, 97 U. S. 693; Morgan v. Railroad Co. 96 id. 716.
    No formal acceptance of the dedications contained in a statutory plat of this character is necessary on the part of the municipal authorities. Town of Lake View v. Le Bahn, 120 Ill. 92; Waugh v. Leech, 28 id. 488; Lee v. Town of Mound Station, 118 id. 304.
    Messrs. Dexter, Herrick & Allen, for the appellees:
    To entitle plaintiffs to recover, they must show a legal, as distinguished from an equitable, title. Kirkland v. Cox, 94 Ill; 400; Roundtree v. Little, 54 id. 323; Wales v. Bogue, 31 id. 464; Chiniquy v. Catholic Bishop, 41 id. 148.
    The plat did not show the width of the streets, and was in other respects uncertain, and did not therefore take effect as a statutory plat. Village of Winnetka v. Prouty, 107 Ill. 218; Town of Lake View v. LeBahn, 120 id. 100; Maywood Co. v. Village of Maywood, 118 id. 63.
    As to the acknowledgment of the plat, see Tully v. Davis, 30 Ill. 103, and Gardner v. Tisdale, 2 Wis. 153.
    To constitute a valid dedication, there must he both the intention to dedicate on the part of the donor, and the acceptance of the dedication by the public authorities. Insurance Co. v. Littlefield, 67 Ill. 373; Grube v. Nichols, 36 id. 96; Fisk v. Town of Havana, 88 id. 209; Littler v. City of Lincoln, 106 id. 353; Village of Winnetka v. Prouty, 107 id. 218.
    That this well settled rule applies to statutory as well as common law dedications, has been expressly held by this court. Littler v. City of Lincoln, 106 Ill. 353; Village of Winnetka v. Prouty, 107 id. 218; Lee v. Town of Mound Station, 118 id. 163.
    There is no doubt that this plat, notwithstanding the failure of the municipality to accept it, had an existence as a plat, and as conveyances were made under it, rights were required with reference to it. A common law plat gives certain rights to grantees in conveyances made under it, notwithstanding there may be no complete dedication of the streets to the public, and notwithstanding even a refusal by the public to accept the attempted dedication. Baker v. Johnson, 21 Mich. 319; Detroit v. Railroad Co. 23 id. 173; Parsons v. Trustees, 44 Ga. 529; Village of Winnetka v. Prouty, 107 Ill. 225.
   Mr. Chief Justice Sheldon

delivered the opinion of the 'Court:

Questions are made whether the proof shows the legal title to the premises to have been in Hamilton and Pearsons, the ancestors of the plaintiffs, at the time they made the plat of ■Canalport, and whether the plat was made out and acknowledged in conformity with the statute, so as to take effect as a statutory plat. We do not find it necessary to consider these questions, for the reason, that assuming their affirmative, that the proof does show the legal title to have been in Hamilton and Pearsons at the time they laid out Canalport, and that the plat was in all respects in conformity with the statute, so as to make the same a good statutory plat, still we are of opinion this action must fail.

The position of the plaintiffs is, that no acceptance by the city of Chicago, of the dedication of the streets, was necessary to vest it with the fee simple title to the streets in Canalport,— that the statute itself vested the title in the municipality immediately when the plat or map was “made out and certified, acknowledged and recorded,” as required by the act; and reliance is placed upon the literal reading of the statute, that such plat “shall be deemed, in law and equity, a sufficient conveyance to vest the fee simple * * * in trust, to and for the uses and purposes set forth and expressed,” and upon expressions which are found in certain of the earlier opinions of this court, as in Canal Trustees v. Havens, 11 Ill. 556, that “on the recording of the plat, the fee in the streets, eo instanti, passes to the corporation,” and in Hunter v. Middleton, 13 Ill. 54, that “the acknowledgment and recording of a town plat vests the legal title to the ground embraced by the streets and alleys, in the corporation of the town,” and, to like effect, in Gebhardt v. Reeves, 75 Ill. 301. But in these cases there was no question raised or considered as to acceptance of the dedication by the municipality, and what was said is to he regarded as observation upon the effect of a statutory dedication, without deciding upon what would constitute a complete statutory dedication. It is well settled, that at common law, to make a complete dedication there must be acceptance,—not any formal act of acceptance, but that there must be user, or some other act indicating acceptance by the public authorities, in order to complete the dedication. Gentleman v. Soule, 32 Ill. 271; Grube v. Nichols, 36 id. 96; Illinois Ins. Co. v. Littlefield, 67 id. 368; Town of Princeton v. Templeton, 71 id. 68; Fisk v. Town of Havana, 88 id. 208. And this principle applies to-statutory dedications by the making, acknowledging and recording of a town plat, as well as to common law dedications,, as has been expressly decided by this court. (Littler v. City of Lincoln, 106 Ill. 353.) In that case the question was presented, and underwent full consideration, when it is that the-fee contemplated by the statute relating to town plats actually vests in the municipality,—whether immediately upon the-making, acknowledging and recording of the plat, or not until acceptance of the dedication by the municipality,—and it was held that the fee did not vest until such acceptance. The law imposes upon cities and villages the obligation of improving and keeping in repair their streets, and the idea was rejected that individual owners of land, by the making of town plats, could create in municipalities the ownership of streets, and thereby impose upon them the burden and responsibility of improving and keeping in repair streets. It was held that this could not. be done without the assent of the municipality, and its acceptance of the dedication. It was there said: “And so; until acceptance by the municipality, although the owner is estopped to deny the dedication whenever private rights intervene, the act of the owner, in platting, etc., is in the nature of a mere offer to the municipality. Until the municipality accepts, it can not be bound, by mandamus or otherwise, to open or improve the streets; and until then, it necessarily can have no» rights in the streets, as trustee or otherwise.” The analogy of a conveyance by deed was adverted to, where acceptance of the deed is necessary to effectuate the conveyance; and that although acceptance of a grant may be presumed where it is beneficial, yet if a burden is imposed by the grant, an acceptance is not tb be presumed from the mere fact that the deed is executed.

In County of Wayne v. Miller, 31 Mich. 447, there was a like decision under a similar statute. In that case a statute-of Michigan provided that a plat executed in accordance with its provisions should “vest the fee of such parcels of land as .are therein expressed, named or intended for public uses, in the county.” In remarking as to the effect of a plat made under the statute, the court there say: “If the plat is only •an offer to dedicate, the, offer must be accepted, or it may be withdrawn. * * * But if the plat is regarded as a grant, it is equally necessary that there should be acceptance. No •one can thrust a grant upon another without his assent.” See Field v. Manchester, 32 Mich. 279.

There is not to be the implication that the offer of dedication made by a town plat may, at any time before acceptance, be withdrawn, at the will of the offerer. There is a distinction here in respect of the public, and individuals having private rights. It was recognized, in Littler v. City of Lincoln, that the owner might be estopped to deny the dedication whenever private rights intervene. And in Waugh v. Leech, 28 Ill. 492, speaking of streets not used by the public, it was said: “If they (the streets) are not reclaimed by the original proprietor in some mode authorized by law, they remain public, open to the use of the public, whenever they may choose to appropriate them.” And see Town of Lake View v. LeBahn, 120 Ill. 101; 2 Dillon on Mun. Corp. sec. 642. We have statutes which jirovide for the vacation of town plats in whole or in part.

The acts relied on as showing an acceptance here, are, first, the proceedings of the common council of Chicago in 1854, adopting an ordinance “for planking Blue Island avenue,” and -the assessment to pay for this improvement; second, the fact -that from-1851 the property, was assessed for taxation under -the description of lots and blocks; third, an act of the legis.'lature, in 1865, entitled “An act to authorize the dedication, :xe-subdivision and partition of Canalport, in Cook county,” :and an amendatory act in 1869, conferring like powers on the ^Superior Court of Chicago.

As to the proceedings for the improvement of Blue Island', avenue, it appears that these proceedings originated in the petition of Henry Walker and others, presented to the common; council February 6,1854, for “planking Blue Island avenue1 from Harrison street to the bridge of the Blue Island Plank. Boad Company, across the west branch stream.” On March; 6, the committee on streets and alleys, to whom was referred! the petition, reported in favor of the same. The further proceedings consisted of an order for the improvement, and an assessment to pay for it, and a return of the assessment warrant. In all of these proceedings the improvement is described! as “the planking of Blue Island avenue,” but in some of them-. Canal street is mentioned, in describing the course of the improvement, as being along that street about a quarter of a mile. After making the original plat of Canalport, Hamilton and Pearsons made a new plat, called the lithograph map, which, covered the same and a large amount of other adjoining property. There is no pretense that this map was ever acknowledged, or that it was a statutory plat. It showed Canal street, the same as the original plat. It is plausibly urged that the references in these proceedings were to this lithographed plat, from the fact that in the assessment warrant and order of’ sale, the blocks not shown in the original plat of Canalportappear by the numbers and descriptions given on the lithograph map. It is not claimed that these proceedings had any reference to the particular streets sought to be recovered in this action. The only appearance of any street over the entire territory covered by the plat of Canalport was the Blue Island plank road, a toll road laid out by a private company in 1848, which road was afterwards called Blue Island avenue. There, was no Blue Island road, or Blue Island avenue, or any street corresponding to it, on the plat of Canalport. Blue Island avenue ran south-westerly through Canalport, crossing its platted streets diagonally. Thus crossing the platted streets, the-recognition and use of Blue Island avenue was inconsistent with the plat of Canalport, and proceedings for the improvement of that avenue would not seem to be in harmony with and in acceptance of the dedication by the plat, but the reverse.

Because of the reference to Canal street,—one of the streets shown on the plat,—in describing the course of Blue Island avenue, as being for a short distance along a part of that street, we do not think that therefrom there should be attributed to the common council an intention to accept the entire plat of Canalport, with its twenty-six streets, having a total length of about ten miles. The condition, afterwards as well as before, evinces that there never was any such intention. ■Canalport was but a projected town. A plat of it was made and recorded, but the town was never built. The site remained vacant prairie, except as it was occupied and used for a brickyard. There was no public to have use for the streets, and it appears that from the date of the making of the plat, (1835,) until the vacation of the plat in 18'Tl, not one of all these ■streets, in any part, was opened or improved, or in any way used by the public, except as Blue Island avenue followed along a part of Canal street for a short distance, as above stated.

We can not think that there should be given to this proceeding for the planking of Blue Island avenue, the effect of an acceptance of the dedication of the streets of Canalport. The fact that the lots in the subdivision were assessed as such, does not show an acceptance. (Kennedy v. Mayor of Cumberland, 65 Md. 514; Baker v. Johnson, 21 Mich. 319.) In the former case, it was a question whether the dedication of Lee street, shown on a plat called “Shriver’s addition,” had been accepted. The court say: “The fact that lots were assessed in the assessment books of the city, as lots in ‘Shriver’s addition,’ is, in our opinion, entitled to no weight whatever in determining this question of acceptance. This was simply the recording the description of the lots for the purpose of taxation, as the owners themselves had chosen to describe them in their deeds, and in order to distinguish and identify the property assessed and taxed.” In the latter case, a plat had been made showing upon it a public square. In remarking upon acts evidencing acceptance on the part of the public, the court say, page 350: “The assessment or non-assessment of the premises we do not regard as material, as the assessing officers do not represent the public for the acceptance of dedications.” In Lee v. Town of Mound Station, 118 Ill. 314, where evidence had been admitted that the square in question, which, it was claimed, was dedicated, was not assessed for taxation, this court, referring to this evidence, say: “We think the evidence was admissible, as tending, though it may be slightly, to show a public acceptance.” Clearly, the assessment in the present case is of little weight against the strong evidence that there was no acceptance.

The act of the legislature of 1865, which is referred to as an acceptance of the dedication, provides that the proprietors of a majority in numbers of the lots in Canalport may file a petition in the circuit court, in chancery, making the other proprietors parties, and authorizes the court, on such petition and notice to the other proprietors, to appoint commissioners, etc., and enter a decree vacating the subdivision and re-platting and partitioning the property among the several proprietors. This act recognizes the existence of the plat of the subdivision, that there were private rights in respect thereto, and provides for a partition among the lot owners. But we are unable to perceive that in this there was any recognition that there had been an acceptance, by the public, of the dedication of the streets. There might well have been private rights, in respect to streets, in grantees of conveyances made under the plat, although there may have been no complete dedication of the streets to the public by an acceptance of the proffered dedication, as we have before suggested.

The above are the facts which are relied upon as showing an acceptance.. We find them to be insufficient, and that there was no acceptance, by the public, of the dedication of the streets.

■ But with or without such acceptance, the title did not, in our opinion, revert to the plaintiffs, the heirs of Hamilton and Pearsons, on the vacation of the plat. The several lots on the original plat, which abut on the streets sued for, are thirty-one in number. Hamilton and Pearsons, the original proprietors, conveyed away all these lots prior to 1854, the last of the conveyances being of the date February 23,1853. The first alleged act of acceptance was the passage of the ordinance for the planking of Blue Island avenue, in 1854, so that the acceptance, if one there was, was subsequent to the conveyance of all the lots which abutted on the portion of the streets sued for.

In Gebhardt v. Reeves, 75 Ill. 301, this court held, where there had been a statutory dedication of streets, and afterwards a conveyance, by the town proprietor, of the lots abutting on the streets, that upon a vacation of the plat subsequently, the title to the streets reverted to the original owner who dedicated the same, and not to the abutting lot owners. But this was upon the ground, that at the time when the conveyances were made the fee of" the streets was vested in the municipality, and was not in the original owner. In the present case, however, we find that at the time Hamilton .and Pearsons made their conveyances, the fee of the streets was not vested in the ■municipality, but was in Hamilton and Pearsons, and hence we think a different rule applies here. The doctrine is, that a conveyance of a lot abutting on a highway or street, where there has been no statutory dedication, conveys the grantor’s interest in the street to the centre,—so that Hamilton and Pearson’s conveyances of the lots (the fee of the streets then being in them,) conveyed the fee in the streets to their grantees, and on vacation of the plat there was no interest in the streets to revert to Hamilton and Pearsons, and none did revert to them or their heirs. We hold, in accordance with the doctrine of the Littler case, that an acceptance is necessary to make a complete dedication under the statute; that until acceptance, the fee does not vest in the municipality, but remains in the original proprietor. Hence a conveyance of the lots before acceptance carries the title to the centre of the street. The fee in the streets passed to the grantees by the conveyances here,—not the fee absolutely, but the fee burdened with the offer of dedication which had been made but not yet accepted. Gebhardt v. Reeves went upon the assumption that there had been a complete dedication before the conveyances there were made. No question of acceptance arose in the case.

These views render it unnecessary to consider the alleged errors in refusing the two propositions of law submitted by the plaintiffs, and in the admission and rejection of evidence. These all relate solely to the sufficiency of the plat; but this opinion proceeds upon the assumption that the plat was a valid, statutory plat, and that upon that assumption the plaintiffs are not entitled to recover. This makes the rulings in respect to the plat immaterial to the plaintiffs’ right of recovery, and so not prejudicial to them.

It is insisted the court erred in permitting Walker and Davis to be made parties defendant. It appears that they were permitted to be joined as defendants because of their warranty of title, they having conveyed the premises to the defendant railroad company by a'warranty deed Wait on Actions and Defences, (vol. 3, page 85,) says: “The person from or through whom the defendant derived his title may properly be admitted to defend the title.” And see Redwine v. Brown, 10 Ga. 311.

It does not appear that making these two additional parties defendants, in any way affected the issues, and it is not ground for reversing the judgment.

The judgment of the Superior Court of Cook county will be affirmed.

Judgment affirmed.

Mr. Justice Scott : I do not concur in this opinion.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    Jennie Stumer v. Lizzie Pitchman.

      Filed at Ottawa March 26, 1888.

    1. Slander—actionable words—'she is a thief." The words spoken of another, “she is a thief,” without qualification, imply a charge of larceny, and are actionable per se.

    2. Same-—of am instruction-—whether properly limited to actionable words charged. In an "action for slander, the court instructed the jury, that if they believed, from the evidence, that the defendant, in the presence, etc., falsely and maliciously spoke of and concerning the plaintiff any one or more of the sets of words alleged in the declaration, imputing to the plaintiff that she was a thief, and - intended thereby to intimate that she was a thief, then they should find for the plaintiff. It was contended, that as the declaration contained “sets of words” not actionable per se, the charge would warrant a finding for the plaintiff on proof of such words: Held, that the instruction was applicable only to “sets of words,” which imputed larceny to the plaintiff, and was not liable to mislead the jury.
    3. New trial—absence of witness—want of diligence—immateriality— improper condMct of opposite party. A new trial will not be granted on the ground that the successful party, by improper conduct, prevented the attendance of a witness for the other party at the trial, when the witness was not subpoenaed, and his attendance could have been had by the use of the usual process.
    4. The fact that the matters a defendant expected to have proved by a witness had he attended the trial, are immaterial, and the failure to show that the plaintiff was guilty of any improper conduct to induce him to stay away, affords good reasons for not granting a new trial based on the alleged ground of such improper conduct on the part of the plaintiff.
    5. Appeal—reviewing facts•—question of excessive damages. The amount of damages sustained by a plaintiff in a civil suit at law, is a question of fact, as to which the finding of the Appellate Court is conclusive ’ upon this court.
    Appeal from the Appellate Court for the First District heard in that court on appeal from the Superior Court of Cook county; the Hon. E. S. Williamson, Judge, presiding.

      Messrs. Barnum, Rubens & Ames, for the appellant:
    If words spoken, of themselves, amount to a charge of larceny, yet, if accompanied with a specification of acts upon which the charge is based, which shows that no such crime was ■committed, the party of whom the words were spoken has no •cause of action. Ayers v. Grider, 15 Ill. 38; McKee v. Ingalls, 4 Scam. 30; Brite v. Gill, 2 T. B. Mon. 67; 2 Selwyn’s Nisi Prius, (7th Am. ed.) 1254; McClurg v. Ross, 5 Binney, 218; Lockhart v. Byerty, 53 Pa. St. 418; Thompson v. Bernard, 1 Campb. 45; Allen v. Hillman, 12 Pick. 102; Onslow v. Hone, 3 Wis. 187.
    The doctrines and defences we rely on are available under the general issue, after verdict and judgment. Brite v. Gill, 2 T. B. Mon. 67; Allen v. Hillman, 12 Pick. 102; McKee v. Ingalls, 4 Scam. 30; McClurg v. Ross, 5 Binney, 220; Zuckerman v. Sonnenschein, 62 Ill. 117.
    The verdict of $2400 was the result of passion and prejudice, and the remittitm, under the circumstances of this case, ■does not cure the verdict. Loewenthal v. Streng, 90 Ill. 76.
    Messrs. Brandt & Hoffman, for the appellee:
    To say of another, “he is a thief,” if unexplained, imputes to him the crime of larceny, and is actionable. Robinson v. Keyser, 22 N. H. 23; Fisher v. Roteran, 2 McCord, (S. G.) 190; Dudley v. Robinson, 2 Ired. L. 141; Curtis v. Curtis, 10 Bingh. 477; McNamara v. Shannon, 8 Bush, 559; Miller v. Johnson, 79 Ill. 58.
    It is familiar law, that if enough of the words charged in the declaration to constitute a slander are proved as therein ■charged, it is sufficient. All the words alleged need not he proved. Nor will proof of additional words, or different words, vitiate, unless they so qualify the meaning of the slanderous words as to remove the slander. Sanford v. Gaddis, 15 Ill. 228; Wilborn v. Odell, 29 id. 458; Harbison v. Shook, 41 id. 145.

      Words actionable per se may be explained by other words- or the attendant circumstances. Zuckerman v. Sonnenschein, 62 Ill. 115; Ayers v. Grider, 15 id. 37; Winchell v. Strong, 17 id. 597.
   Mr. Justice Scott

delivered the opinion of the Court:

This suit was brought by Lizzie Pitchman, against JennieStumer, in the Superior Court of Cook county. It is an action-on the case, to recover damages for alleged slander. On the trial the jury returned a verdict in favor of the plaintiff, and assessed her damages at the sum of $2400. Of the sum found by the jury, $800 was remitted, and thereupon the court overruled the motion of defendant for a new trial, and entered judgment on the verdict for the sum of $1600. That judgment-was afterwards affirmed in the Appellate Court for the Hirst District, and defendant brings the case to this court on her further appeal.

One ground urged in support of the motion for a new trial was, that plaintiff had been guilty of improper conduct in preventing the attendance, at the trial, of Minnie Witzke, who, it is alleged, was a material witness for defendant. The affidavits-filed in support of this motion have been examined, and it is-seen the matters alleged do not afford the slightest ground for a new trial. In the first place, it does not appear the witness was subpoenaed at all, otherwise her attendance might have-been compelled, for it appears it was known on the day when her presence was desired, where she was. No reason is shown why she could not have been brought into court by the use of the usual process. But no effort was made to use the process of the court for that purpose, and defendant can not be heard to complain that the witness was not in court. But a still more satisfactory reason is, that the matters which defendant alleges she expected to prove by the witness were' not of the-slightest consequence, and could not have affected the merits of the ease one way or the other. Nor is there any sufficient. evidence of any improper conduct on the part of plaintiff to induce the witness to stay away from court, and from the .affidavit of the witness found in the record, it is hardly prob.able if she had been present she would have testified to the things defendant says she expected to prove by her. There was no error in the trial court in refusing a new trial on the ground suggested.

In both counts of the declaration, the words alleged to have been spoken by defendant concerning plaintiff, imputed to her the crime of larceny. The words spoken are, “she is a thief,” “she stole thirty dollars from me,” and other expressions implying the same thing. These words, or the substance of them, are found in both counts of the declaration, and the finding of the trial and Appellate courts is a sufficient warrant for the assumption it is proved they were spoken by defendant concerning plaintiff. The position taken by counsel, that when -defendant said of plaintiff “she is a thief, ” or used other similar expressions, she used qualifying words ihat showed she •did not intend to impute' to her the crime of larceny, can not be sustained. It was said of plaintiff, by defendant, in the broadest terms, without any qualifying words whatever, that “she is a thief.” That is equivalent to charging her with having been guilty of the crime of larceny. The words spoken, “she is a thief,” imply a charge of larceny, and are actionable per se. Miller v. Johnson, 79 Ill. 58.

But a single instruction was given by the court on behalf of plaintiff, and that is said to be erroneous. In that instruction -the jury were told, if they believed, from the evidence, defendant, in the presence of persons other than plaintiff, “falsely and maliciously spoke of and concerning the plaintiff any one or more of the sets of words alleged in the declaration, imputing to the plaintiff that she (the plaintiff) was a thief, and intended thereby to impute to the plaintiff that she (the plaintiff) was a thief,” then the jury should find for plaintiff, and assess ier damages. The objection taken to this instruction seemingly having the most force is, that the declaration contained “sets of words” that are not actionable per se, and therefore the charge of the court would warrant the jury in finding for plaintiff if such words were proved. While the charge is perhaps not as clearly expressed as it should be, it will be seen it-is only proof of “sets of words” that ex vi termini charge that plaintiff “is a thief,” that would warrant a verdict for plaintiff. There was abundant evidence of the speaking of such words. Understanding the instruction in this sense, it was not so erroneous as to mislead the jury, especially in view of the facts of the ease as they were fully developed by the evidence. It might be that under a widely different state of facts the instruction would be misleading, and it would be error to give it.

Whether the damages found by the jury are excessive or not, is a question not open to review in this court. The amount of damages sustained by the plaintiff in an action at law is a question of fact, as to which the finding of the Appellate Court is conclusive upon this court. This point has been so often ruled by this court it need not now be discussed as a new question.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Shope

text:
    Caroline Ogden Jones et al. v. Mahlon Ogden Jones et al.

      Filed at Ottawa March 26, 1888.

    1. Wills—change in a will—presumption as to its pu/rpose. A person capable of disposing of property by will, must be presumed to know and intend the effect of language employed by him or her. Where a change is made in a will by the substitution of a new provision in relation to a certain matter, it will be presumed such change was made for a purpose, and to effect the disposition of the estate differently, in some respects, from that made by the original will.

      2. Same—of the estate devised—whether to vest absolutely, or to be held íro trust. A testatrix directed that all her estate be divided into five equal parts, two of which were to be given to her two daughters, absolutely, and to invest the other three shares, and collect the income therefrom for the use and benefit of her three sons during their lives, paying them the income on their respective shares, and then, by a substituted clause or amendment by a codicil, directed that on the death of any of her sons the trustee should give the share of such deceased son or sons to her two daughters, or the survivor, to be used by them, or the survivor of them, either wholly or in such parts or shares as they, or the survivor of them, in their discretion, should deem desirable, for the benefit of the children, if there should be any living, of said deceased son or sons. One of the sons had died in the lifetime of the testatrix, and this fact presumably led to the change in the will: Held, that the devise to the daughters, in respect to the shares set apart for the sons, was not an absolute gift to them, but that they took the share of the deceased son in trust, for the use and benefit of his children.
    3. Same—creating a trust—of the form of words to be used. No particular form of words or language is ne.cessary, in a gift of property, to create a trust. It will be sufficient, especially in the case of wills,-that such intention is apparent from the whole will, when considered in all its parts, under the circumstances of the particular case. Precatory words used in a will, equally with direct fiduciary expressions, are frequently sufficient to create a trust by implication.
    4. Same—discretion in the trustee—its effect upon the devise—and how far subject to control. The fact that a large discretion is vested in the trustee, will not operate to defeat the trust. A gift or devise of ap estate, or a share of an estate, to a trustee, for the use and benefit of minor children, to be used by the trustee, either wholly or in such parts or shares as may seem desirable, creates a large discretion in the trustee; but that discretion is subject to the supervision and control of the courts of equity, and can not be arbitrarily exercised so as to deprive the beneficiaries of the benefit of the fund.
    Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    This was a bill by Caroline Ogden Jones and Frances Ogden Jones, in the circuit court of Cook county, against Mahlon Ogden Jones, and others, including the devisees under the will of Caroline Ogden McCagg, the executor of the will, and the widow and children of William Ogden Jones, deceased, praying for a construction of the will, a substitution of trustees under the same, and for partition.

      February 26, 1877, Caroline Ogden McCagg made and published her last will and testament, in substance as follows:
    First—She gave, devised and bequeathed all her property, ■of every kind, to Edwin H. Sheldon, Mahlon Ogden Jones and Caroline Ogden Jones, in trust, for the following purposes:
    “Second—To divide my estate into five equal parts, and give to each of my daughters, Caroline Ogden Jones and Frances ■Ogden Jones, absolutely, their respective shares of said estate.
    “Third—To invest the property of the three remaining shares and collect the income thereof, which part shall be held by my said executor, executrix and trustees, separately, for the benefit •of my three sons, viz., William Ogden Jones, Mahlon Ogden Jones and Louis Butler McCagg, for and during the time of the respective natural lives of the said sons, and to pay over each year the income of one of said parts, respectively, to my nephew, William Ogden Wheeler, whom I nominate, constitute and appoint as the trustee of my son William Ogden Jones, said income to be used for the benefit of said son William ■Ogden Jones, and the income of the other said part to my sons Mahlon Ogden Jones and Louis Butler McCagg, for and during the term of the respective natural lives of said children.
    “Fourth—Upon the death of any one of my said sons, William ■Ogden Jones, Mahlon Ogden Jones or Louis Butler McCagg, I direct my said trustee or trustees to give the part or share, •or parts or shares, set apart for the use and benefit of the said sons, * * * during their lives, to my other said children, viz., Caroline Ogden Jones and Frances Ogden Jones, or such •of them as shall be living at the time of the death of said William Ogden Jones or Mahlon Ogden Jones or Louis Butler McCagg, to be used by them, either all, or as much of said part or share, or parts or shares, as they shall deem desirable, for the benefit of the children, if there should be any living, of the said William Ogden Jones or Mahlon Ogden- Jones or Louis Butler McCagg, at the time of the death of any one of the said sons.

      “Fifth—In dividing my estate into these five parts, the amount in which any of my said children shall he indebted to my estate shall be taken into account as part of the share given or set apart for the benefit of said child, and be a charge against the same, and when so taken into account, the indebtedness shall be considered as discharged.
    “Sixth—In case of the death of any of my said children before my decease, the number of shares into which my estate shall be divided shall be diminished by the number of children so dying.”
    By the seventh clause, Edwin H. Sheldon, Mahlon Ogden Jones and Caroline Ogden Jones were appointed executors of the will. By the eighth she gave said executors, and the survivor or survivors of them, power to sell, or to hold and improve, the real estate devised in trust, and directed the investment of the proceeds, if sold.
    June 27, 1877, the said William Ogden Jones died, leaving a widow and three children, who were made defendants. January 28, 1879, the testatrix made and published a codicil, by which she expressly revoked the fourth clause of her said will, and substituted therefor what she called “the following amended clause“Upon the death of any of my sons, (naming them) I direct my said trustee or trustees to give the part or share, or parts or shares, set apart for the use and benefit of the said deceased son or sons during his or their lives, to my said daughters, Caroline Ogden Jones and Frances Ogden Jones, or the survivor of them then living, to be used by them, or the survivor of them, either wholly or in such parts or shares as they, or the survivor of them, in their or. her discretion, shall deem desirable, for the benefit of the children, if there should be any living, of said deceased son or sons.” She also revoked the sixth clause of the will, and in the third clause the appointment of her nephew, William Ogden Wheeler, as the trustee of her son William Ogden Jones, because of the death of said s-.,n.

      The will and codicil were admitted to probate in Cook county, in this State, March 16, 1885, and the other persons named as executors having declined to act, letters testamentary were issued to Edwin H. Sheldon, as sole executor, who proceeded to execute the trust. On the hearing in the circuit court, the court, 'in fixing the rights of the children of William Ogden Jones, deceased, decreed as follows: “And that, under the terms and conditions of said will, and the codicil thereto, one equal fifth part of the said estate of Caroline Ogden McCagg, including the real estate owned by her at her decease, and hereafter described, is to be given to the said Caroline Ogden Jones and Frances Ogden Jones, jointly, as'trustees for them, and the survivor of them, to use for the benefit of the said defendants, Alexander M. Jones, Julia H. Jones and William E. Jones, the children of William Ogden Jones, deceased, with power, as such trustees, and as such survivor, to use the said one-fifth part or share either wholly for the benefit of said children, in equal parts or shares, or to use the same in such parts or shares for the benefit of said children, respectively, as they, the said trustees, or1 the survivor of them, shall, in their or her discretion, deem desirable; and that in so using said one-fifth share, it was the intent of said testatrix that said trustees, and such survivor, should have such power of sale, conveyance, management, control and disposition of any part or parts or the whole of such share in their hands, as trustees, as they might or could exercise over their respective individual shares of said estate, using all parts, and the proceeds thereof, or any part or parts of said share, as trustees, for the benefit of said children, as. hereinbefore provided." The complainants prosecuted this appeal from this portion of the decree, for the purpose of testing the construction thereby put upon the clauses of the will and codicil before referred to.

      Mr. J. S. Norton, for the appellants:
    The will gives to the daughters full discretion as to the quantum of property to be used for the benefit of the children, thus making the latter wholly dependent upon them. This-is indicated by the direction to “give” the property to the-daughters, without words limiting the estate; by the discretion given them to use the same, “either wholly or in such; parts or shares,” etc.,—which words are to be understood according to theirk common or popular meaning; (Stettauer v. Hamlin, 97 Ill. 318;) by the failure to provide for survivorship as between the daughters, after vesting of the estate; (Duryea v. Duryea, 85 Ill. 47;) by the close correspondence between the provision of the codicil on this subject and that of the original will; by reference to the explicit language of the original will, and the absence of any apparent occasion or intention to change the estate thereby given.
    The devise fails to impose a trust because of uncertainty as-to the subject. Mills v. Newberry, 112 Ill. 123; 1 Jarman on Wills, (3d Eng. ed.) 368; Welsch v. Belleville Savings Bank, 94 Ill. 203; Fairman v. Beal, 14 id. 244; 2 Redfield on Wills, 421; In re Sanderson's Trusts, 3 Kay & J. 497; Cruwys v. Coleman, 9 Ves. 323; Bland v. Bland, 2 Cox, 355; 2 Story’s Eq. Jur. sec. 1070; Hill on Trustees, 119; 2 Pomeroy’s Eq. Jur. sec. 1009; Hawarth v. Dewell, 6 Jur. (N. S.) 1360; Gully v. Gregoe, 24 Beav. 185 ; Curtis v. Rippon, 5 Mad. 434; Wynne v. Hawkins, 1 Bro. C. C. 179; 1 Jarman on Wills, 335, 336, and cases cited; Harding v. Glynn, 2 L. Cas. in Eq. *950,, note, and cases cited.
    Mr. Clarence A. Burley, for the appellees:
    The property is given to the daughters in trust. There are-apt words to create the trust. It is a gift, to be used for the benefit of, etc. Technical words are unnecessary. Pomeroy’s-Eq. Jur. sec. 1009; Perry on Trusts, secs. 82, 112; Bispham’s Eq. sec. 71; Hill on Trustees, *64, *71; 1 Jarman on Wills, *385, *569.
    Words merely precatory are sufficient. Hill on Trustees, *71; 1 Jarman on Wills, *385 ; Massey v. Sherman, Ambler’s Ch. 520; Pierson v. Garnet, 2 Brown’s Ch. 29; Blakeny v. Blakeny, 6 Sim. 52; Cruwys v. Coleman, 9 Ves. Jr. 319; Raikes v. Ward, 1 Hare’s Ch. 445; ira re Sanderson’s Trusts, 3 Kay & J. 497; (?«% v. Gregoe, 24 Beav. 185; Erickson v. Willard, 1 N. H. 217; Harrison v. Harrison, 2 Gratt. 1; Steele v. Levisay, 11 id. 454; Little v. Bennett, 5 Jones’ Eq. 156; Warner v. Bates, 98 Mass. 274; Parsons v. Baker, 18 Ves. Jr. 476;
    There is certainty of the object of the trust, viz., the children of a deceased son. (Bispham’s Eq. secs. 73, 75; 1 Jar-man on Wills, 385.) And of the subject matter of the trust, viz., the share set apart for the deceased son. Hill on Trustees, 71; 1 Jarman on Wills, 385; Bispham’s Eq. sec. 76, and eases cited above.
    The will is to be construed so as to give effect to all its words and provisions. 2 Jarman on Wills, 141, 842; Schouler on Wills, sec. 473; Jones v. Bramblet, 1 Scam. 276; Liddard v. Liddard, 6 Jur. (N. S.) 439; Friedman v. Steiner, 107 Ill. 125.
    The words and terms of a will are to be construed and taken in their usual sense. 2 Jarman on Wills, *842, rule 16; Stettauer v. Hamlin, 97 Ill. 318; Sehouler on Wills, sec. 472.
    Words giving wide discretion to a trustee are entirely consistent with a trust, and, where a trust is clearly expressed, will be construed to aid in the execution of, rather than to defeat, a trust. Hill on Trustees, (4th Am. ed.) rule 2, in note, p. 116; Harrison v. Harrison, 2 Gratt. 1; Steele v. Levisay, 11 id. 454; Erickson v. Willard, 1 N. H. 217; Massey v. Sherman, Ambler’s Ch. 520; Raikes v. Ward, 1 Hare’s Ch. 445; Little v. Bennett, 5 Jones’ Eq. 156; Beevor v. Partridge, 11 Sim. 229; Hamley v. Gilbert, Jacobs, 354; Hart v. Tribe, 18 Beav. 215.

      The discretion of trustees is not arbitrary, but subject to the control of the courts for its reasonable exercise. Bispham’s. Eq. secs. 74, 75; Chase v. Chase, 2 Allen, 101; Warner v. Bates, 98 Mass. 274; In re Sanderson’s Trusts, 8 Kay & J. 497 Raikes v. Ward, 1 Hare’s Ch. 445; Costabadie v. Costabadie, 6 id. 409; Erickson v. Willard, 1 N. H. 217; Adams’ Eq. 29.
    The circumstances surrounding the making of a will may be inquired into to aid in the construction. 2 J arman on Wills, *841, rule 10; Schouler on Wills, sec. 469.
   Mr. Justice Shope

delivered the opinion of the Court:

This case involves the proper construction of the will of Caroline Ogden McCagg, as changed by her codicil thereto. By the original will, all her estate was devised to her executors in trust, to be by them divided into five equal shares, corresponding with the number of her children,—two daughters and three sons. When this division was made by her executors, they, as trustees, were required to give to the daughters, Caroline and Frances, their respective shares of the estate, being; one-fifth to each, absolutely. The remaining three shares the executors were directed to invest, collect the income therefrom, and hold the same separately,—that is, in three shares,—for the benefit of her three sons, William, Mahlon and Louis, respectively, during the term of their respective lives, and to pay over each year the income derived from William’s part or share,, to a trustee appointed in the will, and to pay the other two sons the income derived from their part or share during their natural lives. By the fourth clause of the will, provision was made for the disposition of the income on a son’s part or share in case of his death after the -testatrix. Upon the death of any one of the sons, the executors were directed to give the share set apart for his use and benefit, to the two daughters, or the survivor of them, to “be used by them, either all or as much of said part or share” as they might deem desirable, for the benefit of the children of such deceased son, if any should he living. By the sixth clause it was provided, that in ease any of her children should die before her decease, the number of shares- into which her estate should he divided should be diminished accordingly, so that if one died before her, the estate would be divided into four shares, thus cutting off from her bounty the children of a son so dying. That contingency happened in her lifetime, by the death of her son William, ■June 27, 1877, leaving three children, which it is safe to assume led to the making of the codicil, to avoid disinheriting her grandchildren, no provision remaining for their benefit in the original will. A person capable of disposing of property by will must be presumed to know and intend the effect of language employed by him or her, and it must be presumed that the -change in Mrs. McOagg’s will was made for a purpose, rand to -effect the disposition of her estate differently, in some respects, from that made by the original will.

By the codicil made in 1879, after knowledge of the death of her son William, leaving infant children, she revoked the ■clause appointing Wheeler trustee for said son, and also revoked the-sixth clause of her will, which would have required her executors to divide the estate into four instead of five shares, and in lieu and substitution of the fourth clause of her will provided-as follows: “Upon the death of any of my sons, (naming them) I direct my said trustee or trustees to give the part or share, or parts or shares, set apart for the use or benefit of the said deceased son or sons, during his or their lives, to my said daughters, Caroline Ogden Jones and Frances Ogden Jones, or the survivor of them then living, to be used by them, or the survivor of them, either wholly or in such parts or shares as they, or the survivor of them, in their or her discretion, shall deem desirable, for the benefit of the children, if there should be any living, of said deceased son or sons.” The controversy relates to the proper construction of this amended or substituted clause of the will, appellees contending that a trust is thereby impressed upon the one-fifth share ■set apart for the benefit of the son William, in the hands of the daughters, Caroline and Frances, for the use and benefit ■of his children, and the court below so held. Appellants, however, contend that they take the absolute title to the one-fifth part that vrauld have been set aside for the use of William had he survived the testatrix.

The testatrix, in devising one-fifth of her estate to each of her daughters, in fee, uses apt language. They are to be given their respective shares “absolutely.” The direction as to a deceased son’s share is expressed in different phraseology. The share or part devised for the benefit of the deceased son is: “To my daughters, * * * or the survivor of them then living, to be used by them * * * either wholly or in such parts or shares as they, * * * in their discretion, shall deem desirable, for the benefit of the children,” etc. This language precludes the idea of an intention to make an absolute gift of such share to the daughters. The share was to be used by them for the benefit of the children. The purpose for which the daughters are to take, is definitely fixed by the language employed. It is for the use of the children of the deceased son. No particular form of words or language is necessary, in a gift of property, to create a trust. It will be sufficient, especially in the case of wills, that such intention is apparent from the whole will, when considered in all its parts, under the circumstances of the particular case.

If the testatrix had intended no provision for the benefit of the children of a deceased son, there was no necessity for revoking the sixth clause of the will, or of changing the fourth. The' precise result contended for by appellants would have occurred if the codicil had not been made, so far as the effect upon the children of the deceased son is concerned. The will and the codicil are to be construed together, in the light of the circumstances surrounding the estate and the testatrix at the time they were severally made. And, as before stated, it is to be presumed that in making the change in her will in respect of her grandchildren, she designed and intended to change the disposition of her estate as to them, and understood and intended the language employed by her should have its legitimate and recognized effect in producing that result. It is apparent, we think, that this fifth share was, by the will and codicil, placed in the hands of the daughters, in trust, to be used by them for the benefit of the children of the deceased son. Precatory words used in a will, equally with direct fiduciary expressions, are frequently sufficient to create a trust by implication. (Hill on Trustees, p. 13, and authorities; Perry on Trusts, secs. 112-121.) It is true that the daughters are invested with a large discretion as to the manner in which they shall execute the trust for the use and benefit of these children; but the devise being to them for the use and benefit of the children of the deceased son, the discretion vested in them will not defeat the trust.

It is, however, urged, that there is uncertainty as to the subject and object of the trust. In this we do not concur. The subject matter of the trust is the one-fifth part of the estate set -apart by the executors, which would have been to the deceased son had he been living at the death of the testatrix, and the children of such son are the objects for which it was created. The share thus set apart was not to be paid over to the daughters absolutely, or for their own benefit, but for the use designated by the donor in the creation of a trust. The daughters, as trustees of this share, are not invested with discretion to withhold the trust fund absolutely from the cestuis que tmst. The fund is not theirs, in equity, and they can not make it so by a refusal or neglect to exercise the discretion vested in them. Their discretion as trustees of this fund is subject to the control of the courts of equity, and can not be arbitrarily exercised so as to deprive the. beneficiaries of all' benefit of the fund.

Much stress is laid upon the words, “wholly or in such parts as they, (the trustees) or the survivor of them, in their or her discretion, shall deem desirable,” etc. It is evident, we think, that the testatrix had in contemplation, one son already having died, that there might be the death of others before her decease, and intended making a provision that would apply, in that event, to the shares of each of such sons. .As to the children of William, they being minors, the daughters, as their trustees, under this clause might apply this share wholly, at once, for their benefit, or in such part as they might deem most beneficial to them. The trustees were made the judges of what use of the estate was most for their benefit. Undoubtedly, if they deemed it most desirable, they had discretion to-invest the funds in their hands for the use and benefit of the cestuis que trust, or to provide for their support and education, expending such sum therefor as to them might seem desirable. But it is unnecessary to discuss this branch of the subject, as the decree of the court does not seek to interfere with the discretion vested in appellants, or direct the manner of its exercise. When that discretion is abused, if it ever is, will be the time for a court of equity to interfere.

Both the daughters taking this share in trust for the children of the deceased son, William, are living, and- it is unnecessary to discuss or decide whether they hold as joint tenants or not. It is enough that they take no beneficial interest therein, but simply hold the same in trust for the defendants, children of their deceased brother, William. It may, however, be added, that as the survivor is required to use this share for the use and benefit of the children indicated, it is manifest that it was to be kept intact for such use, for if each of the trustees took an equal part, the survivor would be unable, or might be, to use the whole for the benefit of the cestuis que trust.

Perceiving no error in this record, the decree of the circuit court is affirmed.

Decree affirmed.


text:
    In the matter of the will of John Noble, deceased.

      Filed at Ottawa March 26, 1888.

    1. Probate oe wna—who may he witnesses, in case of appeal. On the trial of an appeal from an order of the county court probating a paper-as a will, the evidence will be properly confined to that of the subscribing witnesses.
    2. Same—■“credible witnesses," to attest a will. The words “credible witnesses,” as used in the statute relating to the attestation and proof of wills, mean competent witnesses,—that is, such persons as are not legally disqualified from testifying in courts of justice by reason of mental incapacity, interest, or the commission of crime, or other cause excluding them from testifying generally, or rendering them incompetent in respect to the particular subject matter or the particular suit. The mere fact that an attesting witness to a will has pleaded guilty to an indictment for forgery, will not render him incompetent to testify on the probate of the will, although, by statute, the conviction of crime may be shown as affecting the credibility of the witness.
    3. Same—deposition of attesting witness—dedimus with will attached— to what courts the statute applies. Section 4, chapter 148, of the Revised Statutes, providing for the issue of a dedimus with the will attached to •take the deposition of a non-resident witness to the will, applies only to proceedings in the county court, and not to appeals from orders of the county court admitting wills to probate. In such case the supposed will is a file of the court, and can not be withdrawn except by leave of court granted in term time.
    4. Same—deposition taken hy consent without a dedimus. On an appeal from the probate of a will to the circuit court, by the agreement of the parties, the deposition of one of the subscribing witnesses to the will was taken, without the issue of any dedimus, and it was agreed that such deposition might be read in evidence, upon all matters in respect to which the witness would be competent to testify in open court: Held, that by such agreement of the parties the propriety of taking the evidence of the witness in that way could not be questioned.
    5. Same—attaching will to deposition. A paper on file as the last will of a party may be produced to an attesting witness thereto, on the taking of his deposition, and identified by him, so as to prevent any mistake as to identity or the possibility of the fraudulent substitution of any other writing; and in such case, the deposition will not be suppressed merely because the will was not attached thereto by the officer and certified to the court.
    6. Same—offering the will in evidence—not shown hy the record. A judgment, on appeal to the circuit court, admitting a will to probate, will not be reversed because the record fails to show that the will was formally introduced in evidence, when no such objection was made in the trial court, and the parties, by their instructions, treated the paper as in evidence.
    7. Depositions—objection that they were not sealed—presumption. On an objection to a deposition, on the ground that it came to the clerk unsealed, it will be presumed that the officer who took the deposition did his 'duty, and sent the same properly sealed, and the burden of proof is on the objector.
    8. Same—practice—time, within which to move to suppress deposition for being v/nsealed. A motion to suppress a deposition on the ground it ■was not properly sealed and directed, comes too late after a general order for the opening of all depositions, unless some good reason is given for the delay. The court, upon objection taken before such order is made, can then decide the motion by inspection, instead of acting upon affidavits.
    9. Witnesses'—credibility — conviction of crime. By statute of this State, a conviction of crime may be shown as affecting the credibility of the witness, and whether it does affect the credit to be'given his testimony is always a question for the jury.
    10. Same—impeachment— by proof of contradictory statements. To render an affidavit of a witness admissible in evidence for the purpose of ■contradicting or impeaching his testimony given by deposition, the affidavit must have been produced on his examination, and his attention called to ■such parts as are claimed to be contradictory of his testimony. It is not sufficient to ask him, generally, if he has not made certain contradictory ■statements.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook ■county; the Hon. Lorin C. Collins, Judge, presiding.
    A paper purporting to be the last will and testament of John Noble, deceased, was presented to the probate court of Cook county, by Edward P. Savage and Otis K. A. Hutchinson, the •executors, for prohate, and an order was entered in that court admitting it to probate as the last will and testament of John Noble. Robert W. Robinson appealed from that order to the circuit court, where like action was had, and upon appeal to the Appellate Court the judgment of the circuit court was affirmed. Robinson prosecutes this, his further appeal to this court.

      Mr. W. S. Coy, and Mr. S. P. Douthart, for the appellant:
    The depositions should have been suppressed. rev. Stat. secs. 30, 31, chap. 51; Edleman v. Byers, 75 Ill. 367; Corgan v. Anderson, 30 id. 95.
    The affidavit of Hood should have been received in evidence. 1 Greenleaf on Evidence, sec. 200; Commonwealth v. Knapp, 9 Pick. 507; Ray v. Bell, 24 id. 444; Craig v. Rohan, 63 id. 325.
    The court erred in instructing the jury that the term “credible witnesses” meant “competent witnesses,” and that Mcllvaine and Hood were competent witnesses, and their testimony should be received in the case. Stampofski v. Steffens, 79 Ill. 303; Haines v. People, 82 id. 430; Connaghan v. People, 88 id. 460; Packet Co. v. True, 88 id. 608; Belt v. People, 97 id. 461; O’Neal v. Boone, 82 id. 589; Shaw v. People, 81 id. 150; Andreas v. Ketcham, 77 id. 377; Paton v. Stewart, 78 id. 481.
    The court erred in instructing the jury that the fact that Hood was under indictment for, and had pleaded guilty to, the crime of forgery, did not render him incredible as a witness. Johnson v. People, 94 Ill. 505; Provision Co. v. Tilton, 87 id. 547; Insurance Co. v. Crawford, 89 id. 62; Calef v. Thomas, 81 id. 478; Martin v. Johnson, 89 id. 537; City of Aurora v. Hillman, 90 id. 61; Moore v. Wright, 90 id. 470; Phillips v. Roberts, 90 id. 492; Life Ins. Co. v. Dill, 91 id. 174.
    It was error to instruct the jury that it made no difference when the witness formed his opinion as to the mental capacity of the testator. Rev. Stat. sec. 2, chap. 148.
    Mr. J. N. Jewett, and Messrs. Hutchinson & Luff, for the proponents of the will:
    The motion to suppress the depositions of Hood and Mcllvaine was properly overruled,—first, because the depositions were properly enclosed and sealed up; and second, because the motion was made after the depositions had been opened at the request of counsel for appellants. The objection was not made “in proper time,” as required by section 31, chapter 31, of the Revised Statutes.
    By the first instruction given on behalf of the proponents of the will, the jury were correctly instructed as to the requirements of the law necessary to establish a document offered in evidence and purporting to be a last will of a person deceased, and to entitle the same to probate and record as such last will. Dickie v. Carter, 42 Ill. 376.
    The term “credible witnesses” means competent witnesses, and the instruction of the court, “that the mere fact alone that Henry Hood was, at the time of his examination as a witness in this case, under indictment for, and had pleaded guilty to, the crime of forgery, did not render him incompetent ■or incredible as a witness to the execution of the writing introduced in evidence,” was properly given. 1 Redfield on Wills, 253, and note; Rusher v. Lambdin, 12 Sm. & M. 230; Hawes v. Humphreys, 9 Pick. 350; Cornwell v. Isham, 1 Day, 35; Taylor v. Taylor, 1 Rich. 531.
    The paper purporting to be an affidavit of the witness Hood was properly excluded, because no foundation was laid for ■contradicting, impeaching or discrediting said Hood as a witness, and his attention was not called to the said supposed affidavit upon his cross-examination. McCoy v. People, 71 Ill. 111; 1 Greenleaf on Evidence, sec. 462.
   Mr. Justice Shope

delivered the opinion of the Court:

This being an appeal to the circuit court from an order of the probate court admitting the writing presented as the last will and testament of John Noble, deceased, to probate, the ■evidence in the circuit court to prove the will was properly ■confined to that of the subscribing witnesses. Andrews v. Black, 43 Ill. 256; Weld v. Sweeney, 85 id. 50.

The instrument here sought to be proba.ted was attested by Henry Hood and S. L. Mcllvaine, only. It was shown that said Hood was a gambler, had been charged with embezzlement, and at the time his deposition was taken, was awaiting sentence on his plea of guilty to one of five indictments,pending against him for the crime of forgery. Evidence tending to impeach and sustain his general character for truth and veracity was also introduced at the trial. It is insisted by appellant, (the contestant below,) that as the Statute of Wills requires the attestation of all wills by “two or more credible witnesses,” the will was not properly proved, said Hood not being a credible witness, and that the court erred in not so instructing the jury, and in instructing them that in the probate of wills, “the term ‘credible witnesses,’ means witnesses competent to give evidence at the time of the execution of the will,” etc., and that "the “mere fact alone” that said Hood had pleaded guilty to an indictment for forgery, did not render him incompetent, etc. There was no error in the holding in this respect. “Credible witnesses,” as used in the statute relating to wills, has been construed, both in England and this country, to mean competent witnesses,—that is, such persons as are not legally disqualified from testifying in courts of justice, by reason of mental incapacity, interest, or the commission of crime, or other cause excluding them from testifying generally, or rendering them incompetent in respect of the particular subject matter or in the particular suit.

Prior to the passage of the statute under consideration, this construction had been placed on the fifth section of the English Statute of Frauds, (29 Car. 2-, c. 3,) requiring attesting witnesses to wills to be “credible witnesses,” and this ruling has, it is believed, been uniformly followed in the construction of similar statutes in this country. See 1 Jarman on Wills, 77, 90; Eustis v. Parker, 1 N. H. 273; Taylor v. Taylor, 1 Rich. 531; Haws v. Humphrey, 9 Pick. 350; Cornell v. Isham, 1 Day, 35; Rucher v. Lambdin, 12 Sm. & M. 230; Hall v. Hall, 18 Ga. 40; Fuller v. Fuller, 83 Ky. 345.

It will be presumed that the legislature, in employing the phraseology of these statutes, did so with reference to the construction placed thereon. No other construction could he adopted that would be reasonable, or that would not lead to absurd results. By statute, the conviction of crime may be shown as affecting the credibility of the witness. Whether it does affect the credit to be given his testimony, is always a question for the jury. Here, the jury were told, over and over again, that the credibility of the witnesses must be determined by them in view of all the evidence, and unless they believed the evidence of said Hood entitled to credence, they should disregard it, and in that event must find the paper presented by proponents, not to be the will of said John Noble, deceased.

It is next urged that the court erred in overruling the motion to suppress the depositions of the subscribing witnesses, taken after the appeal to the circuit court. Presumably, the witnesses testified in person in the probate court, but after the appeal their depositions were taken on notice, as to Mcllvaine, and by agreement, as to said Hood, and not upon dedimus or commission annexed to the proposed will, as is provided may be done in the probate court, by order of that court, by section 4, chapter 148, of the statute. In respect of the deposition of Hood, it is "sufficient to say that the record (not abstracted) shows that it was taken by stipulation of appellant, and it was agreed “that said deposition may be read in evidence on the hearing of said cause, as evidence upon all matters upon which the testimony of said witness, -if taken in open court, upon such hearing, would be competent.” Appellant is in no position, therefore, to question the propriety of taking the evidence of the witness in that way.

It is first objected, as to both depositions, however, that they were not properly sealed when delivered to the clerk of the circuit court. The statute (sec. 31, chap. 51,) provides, that “every deposition that shall he returned unsealed, or the seal of which shall be broken previous to its reception by the clerk to whom it is directed, shall, if objection be made thereto in proper time, be regarded by the court as informal and insufficient.” Two sufficient answers appear to this objection:

First—The presumption being that the officer did his duty-in that regard, and the covering having been destroyed by the ■clerk in opening the depositions, under order of the court, the burden was on the objector to show that they came to the hand •of the clerk unsealed. We can not say this was done. In the conflict, we can not say the trial court was not justified in believing the affidavits showing that they were properly sealed, rather than the others showing that the ends of the packages were left open. There is no pretense that the depositions had ■been changed or tampered with.

Second—The objection was not made in proper time. It is true that motions to suppress depositions may be made at any time before entering upon the trial, and for most causes after the depositions have been opened. We are, however, inclined to adopt the 'salutary rule announced by the trial court, that this objection comes too late after the deposition has been opened, under an order of the court, unless some good reason is apparent, or is made to appear, for the delay in making the objection. And especially ought- this to be so when, as here, the order is made on the motion of the objector. There can be no hardship in requiring this objection to be made while the enclosure is intact, as it came t.o the custody of the clerk. It can then be determined by inspection by the court, and avoid the necessity of proof of its condition when received. No better illustration of the propriety and necessity of such a rule can be found than in the unseemly spectacle presented by the conflicting and contradictory affidavits of attorneys, ■officers of court, and others, preserved in this record.

It is next objected to the depositions, that they were not taken on dedimus or commission issued with the will attached, as is provided for in section 4, chapter 148, of the Statute of Wills, the contention being that depositions of attesting witnesses to a will can be taken only in that mode. The section referred to provides for taking depositions of subscribing witnesses who are non-residents or who are unable to attend, upon the presentation of a will for probate in the probate court, and, by its terms, applies to proceedings in that court only. The ■dedimus is to issue on application to and “special order” of that court. While the circuit court would undoubtedly have power to order a dedimus, with the will annexed thereto, to issue, as contemplated by said section 4, in the probate court, we perceive no reason why, after appeal to the circuit court, the depositions of the witnesses to the will may not be taken in vacation, as in other cases. There are many and cogent reasons why the legislature, while prescribing with great particularity the mode of procuring the deposition in the first instance, did not make that method exclusive after appeal. The probate court is always in session for the probate of wills, and an order for a dedimus can be immediately made on presentation of the writing purporting to be a will, if the witnesses are non-residents or unable to attend, or if resident, they can be immediately summoned and required to testify. No necessity existed for a provision for taking the deposition of a witness about to depart from the State, for the reason that such witness could be at once heard in that court. The appeal is, however, to a term of the circuit court to commence at a future time. The witnesses can not be produced in open court until the court convenes and the cause is reached for trial; no order can be entered until the court is in session; the clerk can not issue the dedimus in vacation, for the reason, if the statute did not require it to issue only on the order of the court, he could not withdraw the will from the files for the purpose of attaching the same to the dedimus without an order of court. It is evident, if the deposition could only be taken in the manner contended for, the witness whose testimony is essential to establishing the will may have passed beyond the reach of the process of the court, and his testimony be lost, or great delay and inconvenience be occasioned in procuring it.

It is also objected that the deposition should have been suppressed, for the reason that the instrument alleged to be a, will was not attached thereto, and certified to the court. That instrument was, as we have seen, part of the files of the court, and could not be withdrawn to be attached to the depositions, except upon leave. We can perceive no objection to producing the writing to the witness, without in fact removing it from the files, and examining him in respect thereto, care being taken, as was here done, to so identify the instrument as to preclude any mistake as to its identity, or the possibility of the fraudulent substitution of any other writing than the proposed will. In the absence of evidence upon the subject, it. must be presumed that the writing submitted to the witnesses, which affirmatively appears to have been the instrument admitted to probate in the probate court as the will of John Noble, deceased, was produced before the notary by the proper custodian, and that the same remained in his custody. To hold that such inclosure of the writing, with the deposition, is necessary, would be to render it impossible to take depositions in respect to the public records and files of the courts prior to the convening of the same. In this ease all was done that was necessary to clearly identify the writing proved by the depositions as the will of John Noble, to be the same instrument presented to and admitted to probate in the probate court, and again presented on the appeal.

It is next urged that the court erred in refusing to admit in evidence an affidavit of the witness Hood, made, as it is alleged, prior to the taking of his deposition, and contradictory of his evidence as to the mental condition, etc., of the testator at the time of filing said proposed will. The only purpose of its introduction would have been to contradict and impeach the witness. To have rendered it competent for this purpose, the affidavit should have been produced, and the attention of the witness specifically called to such parts of it as it was thought his testimony was contradictory of at the time of his examination. This was not done. It is true, he was asked, on cross-examination, if he had not stated, while in jail, to-any one, that at the time of the execution of the will John-Noble was mentally unfit to understand the same, etc., and denied having done so. Such general examination of the witness, without calling his attention to the writing, and permitting him to read the same, or hear it read, laid no sufficient, foundation for the introduction of the affidavit. 1 Greenleaf on Evidence, 463-465.

It is urged that the judgment should be reversed, because the record fails to show that the offered will was formally introduced in evidence. This contention is without force. The instrument sought to be probated was present in court, and before the jury, and was treated by the court and parties as admitted to the jury for all proper purposes. We need only look at the instructions to verify this statement. In those-given for appellant, it is referred to as “the paper presented as the last will of John Noble,” as “the paper in question,” as “the paper presented purporting to be the will of John Noble,’1" and as “the paper offered in this case as the last will and testament of John Noble, deceased,” while in those given for appellee, it is referred to as “the document presented as the last will and testament of John Noble * * * in the present case,” and as “the writing introduced in evidence as the last will and testament of John Noble.” Waiving the question of the necessity for its formal introduction, appellant can not be-heard to complain in this court, for the first time, that the-instrument in writing offered, and which was the subject of investigation and inquiry, was not properly before the jury.

We have carefully considered the errors assigned, and are of opinion that no error has intervened for which a reversal can be properly entered, and the judgment of the Appellate-Eourt will be affirmed.

Judgment affirmed>