author: Mr. Justice Sheldon

text:
    Jacob Vogle v. Albigence H. Brown et al.

      Filed at Springfield March 23, 1887

      Rehearing denied June Term, 1887.

    1. Decree—as to one not a party. A decree of partition of land will not be binding on the holder of a debt secured by a deed of trust on a portion of the premises, when he is not made a party to the suit, even if the trustee in the deed is made a party.
    2. Same—ratification of decree by one not a party—effect of acceptance of proceeds of sale made under decree. A decree in partition of lands upon a part of which there was a deed of trust securing a note of $2000, set off ten acres of the mortgaged premises to be divided into lots, and sold by the master to pay off the incumbrance. The trustee was made a party, but not the holder of the note secured by the trust deed. The lots on sale realized about half the amount due on the note, which was paid to the holder of the note: Held, that the acceptance of the proceeds of the sale of the lots by the holder of the note, was not a ratification of the decree, so as to bind him thereby, as his right to the proceeds was not derived from the. decree, but from the trust deed, and did not, therefore preclude him from a foreclosure.
    3. Same—a decree construed—whether limiting rights of mortgagee. After the giving of a deed of trust by a part of the tenants in common on a tract of one hundred and thirty-four acres of land, a bill was filed for partition, and the decree therein entered, recited that it was made to appear that ten acres of the mortgaged premises would sell for enough to pay off the incumbrance, and ordered ten acres thereof to be sold by the master for the payment of the same, and ordered partition of the residue of the land, without any expression that the proceeds of the sale of the ten acres should be taken in full satisfaction of the incumbrance. The proceeds paid only about half of the mortgage debt: Held, that the decree did not affect the lien of the trust deed on the remainder of the tract for the balance due on the debt thereby secured.
    4. Tenants in common—contribution to remove incumbrance, or to reimburse one who has paid off the same. Where money has been borrowed by a widow and the adult heirs of a deceased person, and used to pay the debts' of the estate, and the interests of the adult heirs were mortgaged to secure the loan so made, on bill for partition it will be proper, in apportioning the incumbrance, to require the share of a minor heir in the land to bear its proper part of the same.
    5. Same—in case of successive sales—marshaling the burden. And in case a grantee of one of the tenants in common is compelled to pay off the incumbrance, he may, on bill filed, have contribution from the several other tenants in common, and when one of the tenants in common has made several conveyances of distinct parcels, they will be held liable for contribution in the inverse order of alienation. And as between such tenant in,common and his grantee, the part remaining unsold will be held first liable 6> contribute.
    6. Marshaling assets—m the case of successive conveyances—of the order of contribution. Where a mortgagor has conveyed the mortgaged premises in different parcels, and the grantees of these parcels again convey them in parcels, the grantees of the latter parcels will be liable to contribute toward the discharge of the incumbrance, for the share of the mortgage chargeable upon then- grantors’ share of the premises, in the inverse order of conveyance to them. But this rule will not be applied when it works injustice.
    7. Affirmance and remandment—of their proper scope and effect, On bill for contribution, the trial court denied the right to contribution.. On appeal to the Appellate Court, the judgment of that court, as shown by the record, was, that the decree of the circuit court be reversed, “and that this cause be remanded to the circuit court, with directions to ascertain the amounts due, by way of contribution, from the other parties liable, and decree that they pay the same to the complainant. ” On a further appeal to this court, the final order was, that the judgment of the Appellate Court be affirmed, “and the cause remanded to the circuit court for further proceedings in conformity with the judgment of the Appellate Court. ” It was objected to this final order, that in affirming the judgment of the Appellate Court, it was inconsistent with the opinion herein, because there were elements in the decision of the Appellate Court, as shown by its opinion, which are not in harmony with the ruling of this court,—that is, as to how the contribution should be made. But the opinion of the Appellate Court was not before this court in any way, and the judgment of affirmance in this court, and the order of remandment, are to be understood as having reference to the judgment of the Appellate Court as found in the record,—nothing more; that is, as determining the right to contribution, simply.
    Appeal from the Appellate Court for the Third District;—. heard in that court on appeal from the Circuit Court of DeWitt county; the Hon. George W. Herdman, Judge, presiding.
    This was a proceeding commenced by Sylvanus Shurtleff, in the circuit court of DeWitt county, by bill in chancery, as purchaser of a portion of a tract of land on which there was an incumbrance, which he paid, against the owners of the-other portions of said incumbered tract, for contribution.

      In March, 1871, John Adkisson died intestate, leaving surviving him, a widow, Corrilla Adkisson, and three sons, Thomas B., Horace and Frank Adkisson, his only heirs-at-law. The widow was appointed administratrix of the estate. The personal property being insufficient to pay the debts of the estate, on June 1, 1874, the widow'and children (except Frank, who was a minor,) borrowed $2000 from Albigence H. Brown, giving their note for that sum, payable in five years, with interest at the rate of ten per cent, to secure the payment whereof, they executed a trust deed to Charles F. Emery, trustee, upon a tract of land of one hundred and thirty-four acres, of which the said John Adkisson died seized. On July 22, 1875, the said Corrilla, Thomas B. and Horace Adkisson filed, in the circuit court of DeWitt county, their bill for dower and partition of the real estate left by John Adkisson, making Frank Adkisson, the minor, and Charles F. Emery, the trustee, but not Albigence H. Brown, defendants. In their bill they state the facts as to borrowing the said $2000, and that it was used in payment of the debts of the estate. The bill further stated their opinion, that ten acres (describingit,) of the land covered by the trust deed would sell for enough to pay off said incumbrance, and asked that the ten acres be sold .in lots to suit purchasers, and the proceeds of the sale be applied to the payment of such incumbrance, or that the lien be apportioned among all the heirs of said John Adkisson, equally, and after that was done, that the land remaining might be divided according to the rights of the parties. The court decreed therein, that the master in chancery sell the said ten acres, (which was set off as lot No. 1,) in lots to suit purchasers, and apply the proceeds, after payment of costs, to the payment of the said incumbrance. In the saíne. case^. the court divided the lands covered by the trust deed, into five lots, numbered from 1 to 5, inclusive, and after directing sale of lot 1, as above, set off lot 2 to Horace Adkisson, lot 3 to Frank Adkisson, lot 4 to Corrilla Adkisson, and lot 5 to Thomas B. Adkisson.
    On January 6, 1876, Thomas B. Adkisson conveyed his lot 5 to Andrew Hutchin, by deed. This lot is a long strip, running north and south, with two railroads running across it east and west, cutting it into three parcels. On February 26, 1876, Hutchin conveyed the northern parcel to Sylvanus Shurtleff, and the southern parcel to P. H. Mills, and on March 6,1876, he conveyed the middle parcel to Jacob Vogle. On January 1,1876, Horace Adkisson paid to Emery, trustee, one-third of the amount due on the incumbrance, and the latter released the lot 2 included in the trust deed, which had been set off to him, Horace Adkisson. The master in chancery afterwards sold lot 1, under said decree, and realized from the sale $1292, and paid to Emery, trustee, from the proceeds, $1076.40. The last payment made by the master to Emery was on November 1, 1880, and left, at that date, a balance due on the incumbrance, of jj>930. There being no further payments made, Emery, as trustee, at the instance of Brown, the holder of the $2000 note, advertised for sale all of the premises included in the trust deed, except said. lots 1 and 2. The sale was advertised for January 20, 1882, and on that day Emery received for Brown, from Corrilla Adkisson, $450, which was supposed to be her full share of the incumbrance which her dower interest should pay, and to make the balance still remaining unpaid, Emery, trustee, offered for sale the part of said lot 5 set off to Thomas B. Adkisson, which Hutchin had sold to Sylvanus Shurtleff, as above stated. The tract so offered was bid in by John Warner, for Shurtleff, for the balance due on the trust deed,— $685.66,—which was received by Emery. A trustee’s deed was made by him to the purchaser, and on the same day he executed a release of the trust deed.
    On July 15,1882, Shurtleff filed his bill in this cause, asking contribution from the other parties interested, in respept of the amount paid by or for him at the sale made by Emery, trustee. Emery and Brown, among others, were made parties, the bill asking that if they, or either of them, had received money on the note mentioned in the trust deed, to which they were not entitled, they might be decreed to pay the same to the part; entitled thereto. The circuit court refused to grant the prayer for contribution, but decreed that Emery should pay back to Shurtleff the amount received by Emery at the trustee’s sale,—$685.66,—with interest thereon. On appeal to the Appellate Court for the Third District, that court reversed the decree, and remanded the cause, with directions to the circuit court to ascertain the amounts due, by way of contribution, from the parties liable, and decree payment of the same to the complainant,—from which judgment of the Appellate Court, Jacob Vogle, one of the defendants, prosecutes this appeal, the requisite certificate having been made.
    Mr. William Monson, for the appellant:
    Emery’s rights and powers under the trust deed were fully settled in the partition suit, and no power remained in him to sell any of said lands. Carter v. Penn, 99 Ill. 390; Peterson v. Neff, 80 id. 25; Horton v. Critchfield, 18 id. 133; Fryrear v. Lawrence, 5 Gilm. 325; Loomis v. Riley, 24 Ill. 307; Kelly v. Donlin, 70 id. 378; McGee v. Wright, 16 id. 555; Ogden v. Chicago, 22 id. 592; Goudy v. Hall, 36 id. 313; Fitzhorn v. Lake, 29 id. 165.
    In a partition proceeding, the statute has fixed the power of the court by giving effect to the decree over incumbrances.
    A person having a mortgage, attachment, or other lien on the share of a part owner, shall be concluded by the judgment in partition; so far as it respects the partition and the assignment of the shares, but the lien shall remain in full force upon the part assigned to or left for such part owner. Hurd’s Stat. 1885, chap. 106, sec. 24.

      Messrs. Moore & Warner, for Shurtleff:
    The court below having power to apportion the incumbrances, there is no inquiry whether it was rightfully done or not. Partition act of 1861, sec. 39.
    As to the power of the court, under this statute, we think the following cases conclusive: Breit v. Yeaton, 101 Ill. 242; Gage v. Lightburn, 93 id. 248; Henrichsen v. Hodgen, 67 id. 179; Harrer v. Wallner, 80 id. 197; Merritt v. Merritt, 97 id. 243; Hopkins v. Medley, 99 id. 509.
    Emery was bound by the decree in the partition case, and he can not legally claim that his act in selling Shurtleff’s land was legal, because Brown was not made a party to that suit. As to Emery, we insist the case is res judicata. Carter v. Penn, 99 Ill. 390; Peterson v. Neff, 80 id. 25; Horton v. Critchfield, 18 id. 133; Fryrear v. Lawrence, 5 Gilm. 325; Loomis v. Riley, 24 Ill. 307; Kelly v. Donlin, 70 id. 378; McGee v. Wright, 16 id. 555; Weiner v. Hentz, 17 id. 259; Ogden v. Chicago, 22 id. 592; Goudy v. Hall, 36 id. 313; 30 id. 109; Fitzgibbon v. Lake, 29 id. 165.
    Emery being an agent to collect, notice to him was notice to Brown, and if he accepted the proceeds of the sale under the decree, it was a ratification of it, and he is estopped. Noble v. Nugent, 89 Ill. 522;. Thayer v. Meeker, 86 id. 470; Manufacturing Co. v. Holdfoldt, id. 455; Booth v. Wiley, 102 id. 84; Noble v. Chrisman, 88 id. 186; Ely v. Hanford, 66 id. 267; Walker v. Mulvean, 76 id. 18.
    As to the rule of contribution, if there is any to be had, see 2 Jones on Mortgages, sec. 1621; Iglehart v. Crane, 42 Ill. 261; Adams’ Eq. sec. 268.
    Messrs. Outten & Vail, for the appellees Emery and Brown:
    Brown being no party to the partition suit, was not affected by any decree therein. Perry on Trusts, sec. 602; Jones on Mortgages, sec. 1769.

      The plaintiff, however, should state distinctly and particularly the grounds on which he omits to make the creditors, or other person interested in the matter in controversy, parties to the suit. Jones on Mortgages, (2d ed.) sec. 1397; Land Co. v. Peck, 112 Ill. 435.
    Trustees and cestuis que trust are the owners of the whole interest in the trust estate, and, therefore, in suits, in equity, in relation to the estate, by or against strangers, both the trustees and cestuis que trust must be parties representing that interest. Perry on Trusts, sec. 873.
    By receiving the money of Emery, obtained under the decree, Brown ratified the partition decree, aiid is estopped from complaining of the decree. Noble v. Nugent, 89 Ill. 522; Thayer v. Meeker, 86 id. 470; Manufacturing Co. V. Holdfoldt, id. 455; Booth v. Wiley, 102 id. 84; McDermed v. Cotton, 2 Bradw. 297; Hurd v. Marple, id. 402; Morrill v. Sloan, 1 Minn. 471.
    The borrowing of the money, mortgaging part of the land, released all other parts of the land except the minor’s tract. Stevens v. Cooper, 1 Johns. Ch. 425; Chisbrough v. Millard, id. 409; Campbell v. Misier, 4 id. 334; Story’s Eq. Jur. secs. 477, 478, 483, 484.
    Moore and Phares ought not to contribute, for when they bought, the land was clear of incumbrance.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The decree of the circuit court was manifestly erroneous. Whatever the partition decree might have been, Brown, the real party in interest, would not have been bound thereby, he not having been made a party to the suit. (Scanlan v. Cobb, 85 Ill. 296.) And it was his right, notwithstanding that decree, to have Emery, the trustee, proceed, and make' sale of. the whole or any part- of the land covered by the trust deed, for its satisfaction. In thus performing his duty, under the trust deed, to Brown, in making such sale, Emery, although he was a party to the partition suit, would not have been liable to refund to the owner of the land any money which he might have received on the sale. Nor, as is claimed, would there have been -any ratification of the partition decree by Brown, so as to make it binding on him, by his reception of the proceeds of the sale of the ten acres. His right to such proceeds would not come from the decree, but from his trust deed, under which he was entitled to have the proceeds of the sale of all or any part of the land embraced in the trust deed, applied to its satisfaction, so far as necessary for that purpose ; and receiving the amount for which a part of the land was sold, it being less than the debt secured, would not affect the lien of the trust deed on the residue of the land.

But the circuit court was evidently under a misconception of what the partition decree was. It took that decree as confining the lien of the trust deed to the ten acres, and exempting from such lien the residue of the one hundred and thirty-four acres covered by the trust deed. That, the decree did not do. The decree recited, that it had been made to appear to the court that the ten acres would sell for a sufficient amount to satisfy the trust deed, and ordered the ten acres to be sold by the master in chancery, and that he apply the proceeds of the sale to the payment of the trust deed, bringing the overplus, if any, into court; that the costs be paid out of the proceeds, and partition was made of the rest of the land. This was all. There was no expression that the lien of the trust deed should be restricted to the ten acres, or that the proceeds of the sale of the ten acres should be taken in full satisfaction of the trust deed, or that the residue of the land should be exempted from the lien of the trust deed. The decree, as appears, proceeded upon the assumption that the ten acres would sell for sufficient to satisfy the deed of trust, but it did not declare that the ten acres, or the proceeds of its sale, should satisfy the trust deed. There was, in fact, realized from the sale of the ten acres, only about half the amount of the debt secured by the trust deed. It would be so erroneous that a mortgage on one hundred and thirty-four acres of land should be made one on only ten acres of it, or that a sum which proved to amount to only about one-half of a mortgage debt admittedly due, should be ordered to be taken in full satisfaction of the whole debt, that a decree should not be held as so ordering, without express language to that effect. The Appellate Court, then, rightly reversed the decree of the circuit court.

The main question in the case was, as to the effect of the partition decree upon the mortgage, and whether Shurtleff is entitled to contribution, and his right to contribution being determined, the case, under the direction of the Appellate Court, will go back to the circuit court, to decide how contribution shall be made, and neither of the courts below having acted upon that subject, this court, perhaps strictly, should not speak thereon, its proper province being but to review the action of the lower courts upon the subject. The question, however, of how contribution should be made, has been discussed by counsel, and we are requested to pass upon it. In view of this, it may not be improper to give an intimation of our opinion as to the general rule applying, so far as it appears to be in dispute between the parties.

In the partition, there was set off to the widow, as her dower, lot 4, and eighty acres and forty acres of land besides. On February 10, 1876, Clifton H. Moore purchased Thomas B. and Horace Adkisson’s two-tliirds interest in the eighty acres, and Horace Adkisson’s one-third interest in the forty acres, and Thomas B. Adkisson’s one-third interest in lot 4; and on January 9, 1880, Horace Adkisson conveyed his one undivided third interest in the forty acres to Abner B. Phares. The parties, here, appear to be agreed that the incumbrance should be apportioned upon the several interests as partitioned, so that each several interest shall pay its ratable share, and the only real matter in difference, as here discussed, seems to he in respect to the lands purchased by Moore and Phares, —whether they should contribute at all, and if so, in what manner. The eighty and forty-acre tracts were not included in the deed of trust, but as the money borrowed was applied in payment of the debts of the estate, and thus relieved the lands from the lien of the debts, it is insisted they should be charged with the payment of the money borrowed. This we think to be reason sufficient for charging the interest of the minor heir, Frank Adkisson, who did not join in the mortgage, but not for charging the lands,—the eighty acres and forty acres in the hands of Moore and Phares. The money borrowed had paid off all the debts of the estate before Moore and Phares purchased, so that when they came to purchase, there were no debts whatever of the estate, and they took their lands entirely free and unincumbered with any lien for ■debts. But lot 4 was in the mortgage, and we think the interest in that lot' which Moore purchased should stand chargeable. The matter then stood thus: The widow having paid what was considered as the proper proportion her dower estate ■should contribute, the one-third interest of Thomas B. Adkisson, consisting of his lot 5 and his reversionary estate in .lot 4 after the termination of the dower estate therein, was chargeable with his proper proportion of the incumbrance,— say one-third thereof. He then, on January 6, 1876, conveyed a part of his interest, to-wit, lot 5, to Andrew Hutchin. This left the remaining part of Thomas B. Adkisson’s interest, to-wit, his reversionary estate in the dower lot 4, in his hands, and as between these two parts, to satisfy the incumbrance which rested upon the whole of the two parts, the part remaining in Adkisson’s hands, his said reversionary estate, should first be exhausted before recourse to the part which he had sold to Hutchin. Afterwards, on February 10, 1876, Thomas B. Adkisson conveyed his reversionary estate in lot 4 to G. H. Moore, and it stood chargeable in Moore’s hands in the same manner that it was in the hands of his grantor;— that is, liable to be first applied,—and leaving lot 5 only liable for any deficiency there might be after such application. Subsequently, Hutchin conveyed lot 5 in different parcels to Shurtleff, Mills and Vogle, and Yogle conveyed his parcel to Ely, and Ely conveyed the same to Dunmire.

The rule mentioned applies where the mortgagor has conveyed the mortgaged premises in different parcels, and the grantees of these parcels again convey them in parcels, the grantees .of the latter parcels being liable, under this rule, for the share of the mortgage chargeable upon their grantor’s share of the premises, in the inverse order of conveyance to them. (2 Jones on Mortgages, sec. 1621.) The rule will not, however, be applied in any case where its application would work injustice. Ibid.

The judgment of the Appellate Court will be affirmed, and the cause remanded to the circuit court for further proceedings in conformity with the judgment of the Appellate Court.

Judgment affirmed.

Subsequently, on June 14, 1887, upon an application for a rehearing, the following additional opinion was filed:

Per Curiam: We are asked to grant a rehearing in this case, or to modify the final order therein so as to conform to the opinion of the court,—

“Because the final order of this court in affirming the judgment of the Appellate Court is inconsistent with the opinion rendered herein, in this, the Appellate Court holds that Frank Adkisson’s (the minor’s) interest is liable for one-third of the original incumbrance, and that Thomas B. Adkisson’s interest was chargeable for the same proportion, but that he had discharged it, except as to $200 on Hutehin’s; that Thomas B. Adkisson should pay $200, and Hutchin, if solvent, should pay the residue of Thomas B.’.s third, and if not solvent, then the residue to be charged to his (Hutchin’s) grantees, in the inverse order of alienation from. him. (See opinion of Appellate Court in this cause, filed November 20, 1886.)”

The record does not show any such holding of the Appellate Court. We have no knowledge of any such holding, and our opinion in this case does not affirm any such holding, if there be such, of the Appellate Court. The circuit court had decided, merely, that the complainant was not entitled to contribution, because the alleged incumbrance upon the lands which he paid off was not an existing incumbrance upon the lands, it having been before that time extinguished. The Appellate Court reversed that judgment, and we affirm merely that judgment of reversal, and not any other judgment or holding of the Appellate Court. That is all the judgment or holding of the Appellate Court which the record shows.

The judgment of the Appellate Court, as shown by the record, is, that the decree of the circuit court be reversed, “and that this cause be remanded to the circuit court, with directions to ascertain the amounts due, by way of contribution, from the other parties liable, and decree that they pay the same to complainant.” We are asked to see opinion of Appellate Court filed November 20, 1886. The record does not contain the opinion of the Appellate Court. The opinion has not, in any way, been brought to our notice, and we can not travel out of the record to the clerk’s office of the Appellate Court to search the files there for matter upon which to base any decision. The remanding order of the Appellate Court makes no reference whatever to the opinion as to any proceeding in conformity thereto, but the direction is general, to ascertain the amounts due, by way of contribution, from the parties liable. If the opinion of the Appellate Court assumes, in any way, to find how contribution should be made, we know nothing of it, and affirm no holding in that regard of the court, but merely affirm the judgment that the complainant is entitled to contribution, and any future action of the courts below should proceed upon that understanding. The remanding order made by this court, for further proceedings in conformity with the judgment of the Appellate -Court, means what it says,—that the further proceedings be in conformity with the judgment of that court, as shown by the record, and that merely, and not in conformity with its opinion.

We see no cause to grant a rehearing, or to modify our final order in the case.

Rehearing denied.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Henry Root v. Thomas Sinnock.

      Filed at Springfield March 23, 1887.

      1. Stockholder’s liability for debts of the corporation—a charter construed. The charter of a private bank contained this proviso: “Provided, also, that the stockholders in this corporation shall be individually liable, to the amount of their stock, for all the debts of the corporation; and such liability shall continue for three months after the transfer of any stock on the books of the corporation:” Held, that the stockholders were each individually liable to pay to the creditors of the bank, not merely the balance unpaid upon subscriptions for stock, but to the extent of the nominal or face value of the stock held by them, for debts of the bank.
    2. Same—what stockholders liable, as respects the time of ownership. Under such a statutory provision, it is not essential to the stockholder’s liability that he be such at the time the creditor’s cause of action shall have accrued. It is sufficient if he is a stockholder when the suit is brought against him.
    3. The expression, “all stockholders, ” in the absence of any legislative indication to the contrary, must be regarded as including not only those who were such at the time the indebtedness was incurred, but all those who successively stand in their shoes in respect to the same stock.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Adams, county; the Hon. Charles J. Scofield, Judge, presiding.

      This was assumpsit, by appellee, against appellant. The declaration contained two counts, as follows:
    “For that whereas, heretofore, to-wit, on the 26th day of March, A. D. 1869, at, to-wit, the county aforesaid, by a certain public law of the State of Illinois, entitled 'An act to incorporate the Union Bank of Quincy,’ the Union Bank of Quincy became and was incorporated, and said Union Bank of Quincy was, on the first day of June, A. D. 1883, and was from thence hitherto, and down to the time of the closing of its doors, as hereinafter mentioned, hath been and was. engaged in the business of banking, at the city of Quincy, in said Adams county; and the said Union Bank of Quincy, on said first day of June, A. D. 1883, had, and from thence hitherto and down to the time of said closing of its said doors hath had and did have, a savings department connected with and constituting a part of its said banking business, in which said savings department said Union Bank of Quincy received deposits at interest, from divers and sundry persons. And the said plaintiff avers, that said Union Bank of Quincy, on, to-wit, the first day of September, 1884, was and still is indebted to said plaintiff in a large sum of money, to-wit, the sum of $7200, for so much money deposited by said plaintiff with said Union Bank of Quincy, in its said savings department, at different times between the first day of June, A. D. 1883, and the first day of February, A. D. 1884, and in the further sum of, to-wit, $500, for interest upon the moneys so deposited as last aforesaid; and said plaintiff further avers, that said defendant, on said first day of June, A. D. 1883, was, and from thence hitherto has been and still is, a stockholder in and owner of a large number of shares, to-wit, one hundred shares, of the capital stock of said Union Bank of Quincy, of the par value of $100 each share; and the said plaintiff further avers, that the said Union Bank of Quincy, during the month of May, A. D. 1884, and on, to-wit, the 15th day of said last named month, closed its doors and suspended payments; and the said plaintiff further avers, that he did after-wards, to-wit, on the first day of August, A. D. 1884, make demand of said Union Bank of Quincy for the payment of the several sums of money so due him from said Union Bank of Quincy, but said Union Bank of Quincy then and there refused to make payment of the same; and the said plaintiff avers, that said Union Bank of Quincy, after the said closing of its said doors, never opened the same for the resumption of business, and never resumed business as a bank, but after-wards, on, to-wit, September 16, A. D. 1884, made an assignment to one John P. Mikesell, for the benefit of its creditors, by means whereof, and by force of the said act above mentioned, the said defendant became liable to pay said plaintiff the indebtedness so due and owing from said Union Bank of Quincy to said plaintiff, to the extent of the aggregate amount of the shares of stock so as aforesaid held by said defendant in said Union Bank of Quincy, reckoned at the par value of $100 per share, and being so liable) the said defendant, in consideration thereof, afterwards, to-wit, on the day and year last aforesaid, at, to-wit, the county aforesaid, undertook, and then and there promised to pay him, said plaintiff, said indebtedness last named, to the extent last aforesaid, on request.
    “And also for that, whereas, heretofore, to-wit, on the 26th day of March, A. D. 1869, at, to-wit, the county aforesaid, by a certain other public law of the State of Illinois, entitled ‘An act to incorporate the Union Bank of Quincy,’ the Union Bank of Quincy became and was incorporated, and said Union Bank of Quincy was, on the first day of June, A. D. 1883, and from thence hitherto, and down to the time of closing its doors, as hereinafter mentioned, hath been and was engaged in the business of banking at the city of Quincy, in said Adams county, Illinois, and said Union Bank of Quincy, on said first day of June, A. D. 1883, had, and from thence hitherto and down to the time of said closing of its said doors hath had and did have, a savings department connected with and constituting a part of its said banking business, in which said savings department said Union Bank of Quincy received deposits at interest, from divers and sundry persons; and the said plaintiff avers, that said Union Bank of Quincy, on, to-wit, the first day of September, 1884, was and still is indebted to said plaintiff in a large sum of money, to-wit, the sum of $7200, for so much money deposited with said Union Bank of Quincy in its said savings department, at different times, between the first day of June, A. D: 1883, and the first day of February, A. D. 1884, and in the further sum of, to-wit, $500, for interest upon the money so deposited, as last aforesaid; and the said plaintiff further avers, that the said Union Bank of Quincy, during the month-of May, A. D. 1884, and on, to-wit, the 15th day of said last named month, closed its doors and suspended payment; and the said plaintiff avers, that he did afterwards, on, to-wit, the first day of August, A. D. 1884, make demand of said Union Bank of Quincy for the payment of the several sums of money so as aforesaid due him from said Union Bank of Quincy, but the said Union Bank of Quincy then and there refused to make payment of the same; and the said plaintiff avers, that at the time of the said closing of said doors of said Union. Bank of Quincy, the defendant was and still is the owner of a large number, to-wit, of one hundred, shares of the capital stock of said Union Bank of Quincy, of the par value of $100 each share; and the defendant further avers, that said Union Bank of Quincy, after the said closing of its said doors, never resumed the business of banking, but afterwards, on, to-wit, September 16, 1884, made an assignment to one John P. Mikesell, for the benefit of its creditors, by means whereof, and by force of the said act above mentioned, the said defendant became liable to pay said plaintiff the said indebtedness so due and owing from said Union Bank of Quincy to said plaintiff, to the extent of the aggregate value of the shares of stock in said Union Bank of Quincy so as last aforesaid owned by said defendant, reckoned at said par value of $100 per share, and, being so liable, the said defendant, in consideration thereof, afterwards, on, to-wit, the day and year last aforesaid, at, to-wit, the county aforesaid, undertook, and then and there promised, to pay him, the said plaintiff, said indebtedness last .aforesaid, to the extent last aforesaid, upon request, yet the said defendant, though often requested so to do, hath not paid the said indebtedness in this declaration, or any part thereof, but so to do hath wholly refused, to the damage of said plaintiff in the sum of $7500, and therefore he brings his suit. ”
    Appellant demurred, severally, to each count of the declaration, but the court overruled the demurrer, and appellant refusing to plead over, and abiding by his demurrer, the court gave judgment in favor of appellee. An appeal was prosecuted by appellant from this judgment, to the Appellate Court for the Third District, and that court gave judgment affirming the judgment of the circuit court. The present appeal is from that judgment of affirmance.
    Messrs. Sibley & Pope, and Mr. A. Wheat, for the appellant :
    The proviso to section 7 of the charter has reference to the first provision of section 4, which relates to the unpaid portion of the stock. Being a proviso, it must be strictly construed. Potter’s Dwarris on Stat. 118-120; 1 Kent’s Com. 463; Minis v. United States, 15 Pet. 445; Voorhees v. Bank of the United States, 11 id. 471; Brown v. Juliet, 1 Scam. 260.
    Both at common law and in equity, whatever was paid on stock directly to the corporation, was a payment primarily made for the use of its creditors, and was a discharge of the liability of the stockholders for the debts of the corporation to the extent so paid. As to the portion not so paid, the creditor had no means of reaching it at common law, but could get relief only in a court of equity, and even there he would be remediless to the extent of the stock forfeited. Sanger v. Upton, 91 U. S. 60; Tarbell v. Page, 24 Ill. 47; Insurance Co. v. Moore, 84 id. 576; Insurance Co. v. Manufacturing Co. 97 id. 546; Field on Corp. see. 96.
    It is insisted on behalf of appellant, that if the stockholder is liable for anything more than for the stock subscribed for by him, the liability is upon the owner of the stock at the time the debt accrued, unless the debt accrued after he ceased to be the owner, and within three months after the transfer of his stock on the books of the corporation. Culver v. Bank, 64 Ill. 537; Fuller v. Ledden, 87 id. 310; Hull v. Burtis, 90 id. 213; Moss v. Oakley, 2 Hill, 265; Judson v. Galena Co. 9 Paige, 598; Tracy v. Yates, 18 Barb. 152; Moss v. McCollough, 5 Hill, 131; Adderly v. Storm, 6 id. 624; Freeland v. McCollough, 1 Denio, 414; Hager v. McCollough, 2 id. 119; Williams v. Hanna, 40 Ind. 335; Chesley v. Pierce, 32 N. H. 388; Mokellumme v. Woodbury, 14 Cal. 265.
    Mr. William McFadon, for the appellee:
    The proper construction of section 7 of the charter of the Union Bank of Quincy makes each stockholder therein liable for the debts of said bank, in an amount equal to the amount of stock held by him,—in other words, said section creates a double liability. Morse on Banking, 493; Driggs v. Penniman, 8 Cow. 395; In re Empire Bank, 18 N. Y. 218; Bank of Poughkeepsie v. Ibbotson, 24 Wend. 493; In re Hollister Bank, 27 N. Y. 396; Slee v. Bloom, 19 Johns. 456; 20 id. 683; Bromley v. Goodwin, 95 Ill. 120; Wincock v. Turpin, 96 id. 135; Law's Appeal, 105 Pa. St. 57.
    The language means, a liability of the stockholder to a creditor in an amount equal to the amount of his stock. Thompson v. Meisser, 108 Ill. 362.
    Such clauses are made for the benefit of creditors, and they give the creditor, and to no one else, a right of action against the stockholder. Thompson on Stockholders, sec. 342; Culver
      v. Bank, 64 Ill. 538; Fuller v. Ledden, 87 id. 313; McCarthy v. Lavasche, 89 id. 276; Hull v. Burtis, 90 id. 217; Jacobson v. Allen, 20 Blatchf. 525; Norris v. Johnson, 34 Md. 485.
    Under the language of the charter in question, the suit was rightfully brought by appellee, a creditor of said bank, against appellant, a stockholder therein,—and that he was such stockholder is nowhere questioned, in the brief and argument of appellant. Meisser v. Thompson, 9 Bradw. 370; Bank of Poughkeepsie v. Ibbotson, 24 Wend. 479; McCarthy v. Lavasche, 89 Ill. 272; Fuller v. Ledden, 87 id. 313.
    The Union Bank of Quincy will be presumed to have received deposits on the faith of the charter liability of stockholders, and under the circumstances the stockholders should be held to a strict accountability. Fuller v. Ledden, 87 Ill. 313.
    • The language of the charter of the Union Bank of Quincy makes all stockholders liable for all debts of the corporation. It does not make stockholders liable for debts coming into existence only while they were stockholders. Hence, if appellant owned one hundred shares of capital stock when said bank closed its doors, and still owned the same at the time of suit brought, as charged in the second count of the declaration, he was liable to appellee under that count. McClaren v. Franciscus, 45 Mo. 465; Middleton Bank v. Magill, 5 Conn. 28; Deming v. Bull, 10 id. 409; Curtis v. Harlow, 12 Metc. 6; Longley v. Little, 26 Me. 162; Child v. Coffin, 19 Mass. 64; McCollough v. Moss, 5 Denio, 567; Thompson on Stockholders, sec. 90.
    The doctrine, that under the charter, in the case at bar, a stockholder, at the time the bank closed its doors, is liable, is subject to this limitation: that if any stockholder has assigned his stock to evade liability, he may be treated by a creditor as still a stockholder in such corporation. Angell & Ames on Corp. sec. 623; McClaren v. Franciscus, 45 Mo. 468.
   Mr. Justice Scholfield

delivered the opinion of the Court:

We have carefully considered the questions discussed in the printed arguments before us, and we concur in the conclusions reached by the Appellate Court.

First—The contention of appellant is, that the liability imposed by the seventh section of the charter of the Union Bank of Quincy, upon the stockholders, is, simply, to pay the creditors of the bank the balance unpaid upon subscriptions for stock. The language of the seventh section, affecting this question, is: “Provided, also, that the stockholders in this corporation shall be individually liable, to the amount of their stock, for all debts of the corporation; and such liability shall continue for three months after the transfer of any stock on the books of the corporation.” The plain and obvious meaning of this language is, to our minds, the stockholders are liable to creditors for their debts, to an extent measured by the amount of their stock. Omitting the clause expressing the extent of liability, and we have this: “The stockholders in this corporation shall be individually liable for all debts of the corporation. ” If this were all, their liability would be unlimited,—they would be absolutely liable for all debts of the corporation The intention, however, is to limit that liability ; but to what extent ? The answer is: “To the amount of their stock, ”—not to the amount unpaid upon their stock. The language makes the liability because of the fact of being stockholders, and not because of the fact of being debtors of the corporation. If the liability intended was simply to pay the creditor the amount due the corporation, what would have been more natural and easy than to have used just that language? The difference between a stockholder, and a debtor for unpaid stock, is recognized in several of the sections, and so was, at the time, in the legislative mind, and it must therefore be presumed that words expressing the one would not have been used to express the other, in this instance. Thus, in section 3, a majority of the corporators are required to designate a time and place for the first election of the directors of said corporation “by the parties subscribing for the capital stock thereof, and each share of stock so subscribed for shall be entitled to one vote.” By section 4, “the payment of the stock so subscribed shall be made and completed by the subscribers at such time and manner as the said directors shall prescribe.” By section 14, “the directors shall have the right, in case that any stockholder shall fail to pay any installment for thirty days after a call thereof, * * * to declare the stock forfeited to the corporation, * * * or * * * sue for and recover the entire amount of subscription remaining unpaid.” By section 5, “no subscriber of the stock * * * shall have the right to vote at the first election of the directors unless he shall have paid ten per cent of the amount subscribed, * * * nor shall any subscriber or stockholder have, at any time, the right to vote at any election, held by virtue of this act, who shall be in default to the corporation for any payments, either in stock held by him, or otherwise.” And by section 10, “in all elections of directors, and in deciding all questions at meetings of stockholders, each stockholder shall be entitled to one vote for each share; * * * and no stockholder whose liability is past due, shall be allowed to vote.” In no instance is the word “stock” used in the sense of a debt or obligation due from the stockholder, but it is at all times used to express the idea of property in the corporation,—what may be the subject of'a debt, it is true, but is not itself a debt, any more than is any other property. And in this connection we will observe, that we are unable to appreciate the distinction which counsel seek to draw between the words, “liable to the amount of their stock,” and the words, “liable in a sum equal to the amount of their stock,” which is frequently found in similar charters, they conceding, as we understand their position, that, on the authority of decided cases, if the latter language had been here used, their client would be liable, as held by the lower courts. But since the words, “to the amount of their stock, ” in no view mean the thing which is itself to be paid to the creditor, but are, in every view, simply used to express the measure by which the sum of money of which the creditors may enforce payment is ascertained, “liable to the amount of their stock” is but stating elliptically what is fully stated by the words, “liable in a sum equal to the amount of their stock. ” Liable to an amount, can mean only liable to pay a sum which reaches or comes up to, or, in short, equals, the given amount. So, here, the nominal or face value of the shares of stock is $100 each; and if A have two shares, we say the amount of his stock is $200,—the nominal or face value of his stock. And, therefore, to say that he is liable, to the amount of his stock, for the debts of the corporation, is only another form of saying that he is liable to the amount of $200 for the debts of the corporation.

Counsel for appellant, by contending that the liability of their client is only for the amount of his unpaid indebtedness on his subscription for stock, impliedly concede the correctness of this construction, for, if he be thus liable, the words “liable to the amount of, ” must be held to mean liable in a sum equal to the amount of the balance unpaid on his subscription for stock. The same necessity for comparison, and the same words of comparison, equally apply in either view, the Only difference being, that the measure or standard by which the comparison is to be made, is, in one view, the nominal or face value of his stock, and in the other, the nominal or face value of the amount unpaid on his subscription for stock.

But this ought not now to be regarded an open question in this court. We have, in numerous cases, without much discussion, it is true, held or assumed that language of the same, or substantially the same, import, meant what we have indicated, in our opinion, this means. Culver v. Third Nat. Bank of Chicago, 64 Ill. 528; Tibballs et al. v. Libby, 87 id. 142; Bromley v. Goodwin, 95 id. 118; Wincock v. Turpin, 96 id. 141; Harper v. Union Manf. Co. 100 id. 225; Eames et al. v. Doris, 102 id. 350; Thompson v. Meisser, 108 id. 362; Queenan et al. v. Palmer et al. 117 id. 619. And the same construction has been placed upon like language in New York and Pennsylvania. Slee v. Bloom, 20 Johns. 683; Briggs v. Penniman, 8 Cow. 395; Bank of Poughkeepsie v. Ibbotson, 24 Wend. 473; Matter of Empire City Bank, 18 N. Y. 218; Lane’s Appeal, 105 Pa. St. 57.

Second—The next question is, should it affirmatively appear that appellant was a stockholder when the cause of action accrued, or is it sufficient that he was a stockholder when suit was brought? In our opinion, it is sufficient that appellant was. a stockholder when suit was brought. The liability is because of being a stockholder—that is, because of the ownership of stock. (Wheelock v. Kost, 77 Ill. 298.) As was said in Brown v. Hitchcock, 36 Ohio St. 681, “the expression, ‘all stockholders,’ must be regarded, in the absence of any legislative indication to the contrary, as including not only those who were such at the time the. indebtedness was incurred, but all those who successively stand in their shoes in respect to the same stock. ” The liability being because of the ownership of stock, it follows the stock into whosesoever hands it may go, and whoever purchases it, does so at the risk of this liability; and, in consonance with this view, we have held, that the liability once discharged, the stock is thereafter free of any further liability on account of ownership. Thebus v. Smiley, 110 Ill. 316.

The rule is thus stated in Thompson on Liability of Stockholders, sec. 90: “But in the absence of special statutory provisions, the general rule, applicable alike to the English joint stock company and the American corporation, is, that liability as contributors, or to creditors, attaches not merely to those who are members at the time or before the debt was contracted, but to those who were such, either, first, when by reason of the stoppage, dissolution or winding up of the company, the right to transfer shares ceased; or, second, in the case of direct proceedings by creditors against shareholders, when the right of the creditors against the shareholder became fixed in an appropriate proceeding. ” See, also, to like effect, Middleton Bank v. Magill, 5 Conn. 28; Curtis v. Harlow, 12 Metc. 3; Holyoke Bank v. Bernbow, 11 Cush. 183; Johnson v. Summerville Dr. Bl. Co. 15 Gray, 216; McCulloch v. Moss, 5 Denio, 567; Matter of Empire Bank, 18 N. Y. 223; Johnson v. Underhill, 52 id. 203; McClaren v. Franciscus, 43 Mo. 464.

The fact that we have held in Buchanan v. Meisser, 105 Ill. 638, and Thompson v. Meisser, 108 id. 359, that the stockholders, in such cases, are in effect partners, is not inconsistent with this view, since every assignment of stock makes a new partnership, .and the new partnership assumes the debts of the old partnership; and the rule in such cases permits the creditor to pass by the partnership primarily liable, and sue that having assumed the debt. See Bindley on Partnership, 455, 456, and notes.

In Culver v. Third Nat. Bank, 64 Ill. 528, the present question was not considered. It was sufficient, there, that there was a right of recovery under the averments of the declaration. The remarks regarded as intimating contrary to the present ruling, were unnecessary to a decision of the question then being considered, and were not intended to announce any rule of law. Fuller v. Ledden, 87 Ill. 310, merely decides that the stockholder who owns stock when the debt is incurred, is liable; but that is not inconsistent with the liability of the owner of the stock at the time suit is brought. (Thebus v. Smiley, supra.) Hull v. Burtis, 90 Ill. 213, turned on the question whether the suit should have been in the name of the corporation, or in that of the creditor. And so, in our opinion, the demurrer was properly overruled as to both counts of the declaration.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Magruder

text:
    Martha E. Scofield et al. v. Orville Olcott et al.

      Filed at Springfield March 23, 1887.

    I- WILLS—vested or contingent estate—rule of construction. It is a rule of construction, that estates, legal or equitable, given by will, should always be regarded as vesting immediately, unless the testator has, by very clear words, manifested an intention that they should be contingent on a future event.
    2. Same—equitable estate—vested remainder therein. There may be a vested remainder in an equitable as well as in a legal estate. Where a testator devises the legal title of his property to his executors, for the use of his wife for life, or until her marriage, with the remainder to his son, the latter will take a vested equitable estate in remainder. And the fact that legacies are to be first paid after the determination of the particular prior estate, will not render the devise to the son contingent.
    3. Same—vested estate defined—and of the distinction between a vested estate and one depending upon a contingency. An estate is vested when there is an immediate right of present enjoyment, or a present fixed right of future enjoyment. It gives a legal or equitable seizin. It takes effect, in interest and right, immediately on the death of the testator, although it may not at that time take effect in possession and enjoyment; and if it be a remainder, it can not take effect, in possession and enjoyment, until the death of the devisee for life, or other determination of the particular estate.
    4. It is the present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, that distinguishes a vested from a contingent remainder. When the event on which the preceding estate is limited, must happen, and when it also may happen before the expiration of the estate limited in remainder, that remainder is vested. It is also vested when it is limited to a person in esse and ascer- * tained, to take effect, by words of express limitation, on the determination of the preceding particular estate.
    5. A testator devised all his estate in trust to his executors, a part of which, after some legacies, was to be converted into money, and his son to be paid §12,000, and directed that the balance be held by them during the life of the testator’s widow, or so long as she remained unmarried, paying her the rents, issues and profits, and then directed that upon her death or marriage the balance be sold and converted into money, and certain legacies be paid to his three sisters, after which the executors were required to convey, assign and deliver all the rest of the' estate to his son. The son died before his mother, leaving her his sole heir: Held, that the son took a vested equitable estate in remainder, and upon his death it passed to his mother.
    6. Same—personal legacy—whether it vests on the death of the testator, or not until a later period. In regard to the vesting of personal legacies the payment of which is postponed to a period subsequent to the death of the testator, the general rule is, that when there is no original gift, but only a direction to pay at a future time, the vesting will be postponed until after that time. If futurity is annexed to the substance of the gift, the vesting is suspended; but if it appears to relate to the time of pajunent, only, the legacy vests instanter.
    7. There is a distinction between a gift of a legacy to a person to be paid to him at a future time, and a direction to pay or transfer the legacy to him at a future time. In the former case, the legacy vests immediately; but when the gift is merely by a direction to pay to him at a future time, the legacy does not vest forthwith, and until the time arrives he will have no vested interest.
    8. Even though there be no other gift than in the direction to pay or distribute in futuro, yet if such payment or distribution appears to be postponed for the convenience of the fund or property, as, when the future gift is postponed to let in some other interest, (as, when there is a prior gift for life, or after payment of debts,) the gift in remainder vests at once; but when the payment is deferred for reasons personal to the legatee, the gift will not vest till the appointed time.
    9. Same—leaving a part of an estate intestate—whether so intended— rule of construction. The courts will adopt any reasonable construction of a will so as to give it effect to dispose of the testator’s entire property, rather than to hold an intention to die testate in part and intestate as to other property.
    Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Messrs. Holden & Farson, for the appellant Martha E. Scofield:
    That the testator did not intend his son, William, should have a present vested estate in the residue, is evidenced—
    First—By the legacy of $12,000, in presentí, to him, together with all the testator’s personal effects.
    Second—By the vesting of the entire estate in the trustees, with directions to them to convey, assign and deliver to William at a future time. Steib v. Whitehead, 111 Ill. 251; Kirkland v. Cox, 94 id. 400.
    Third—By the gift of the life income to the widow, showing that, at all events, she was not to have the residue. Welsch v. Savings Bank, 94 Ill. 202.
    Fourth—By providing for the death of legatees before the time of payment, in the sixth clause óf the will, and failing to make a similar provision in the case of the residuary gift to William, in the seventh clause, although the gift to him was subject to the same contingencies. Travis v. Morrison, 28 Ala. 500.
    Fifth—By the direction to “convey, assign and deliver,” in futuro, to William; which constitutes the only gift to him of the property in dispute'. Travis v. Morrison, 28 Ala. 500; Lambert v. Harvey, 100 Ill. 338; Welsch v. Savings Bank, 94 id. 199.

      Sixth—By the fact that by contrary construction the inheritance of the heirs will go to strangers. King v. Crawford, 17 S. & R. 120.
    Where the whole scope of a will shows an intention not to give vested interests to the children, no argument of supposed necessity or expediency will be allowed to accelerate the vest-ing. Hotchkin v. Humfrey, 2 Madd. 65.
    The fact that our construction would cause an intestacy as to the residue, can not control the vesting. Anderson v. Felton, 1 Ired. Eq. 59; King v. Crawford, 17 S. & R. 120; Lambert v. Harvey, 100 Ill. 338.
    That there is no distinction, as to vesting, between a bequest of the residue and an ordinary pecuniary legacy, see Addison v. Busk, 14 Beav. 459; Shum v. Hobbs, 3 Drewry, 93; Hanson v. Graham, 6 Ves. 248; Leake v. Robinson, 2 Mer. 386, and various eases postponing the vesting of a residue, hereinafter cited.
    The same general principles which regulate the vesting of devises of real estate, apply, to' a considerable extent, to gifts of personalty. 1 Jarman on Wills, (Bigelow,) 833; Walker v. Mower, 16 Beav. 369.
    Where the only gift is in a direction to divide or pay at a future time, whether upon the happening of - a contingent event or an event certain to occur, the person must he in existence at that time, to take. 2 Williams on Executors, 1334; 1 Jarman on Wills, (Bigelow,) 837, 839, 840; Hall v. Terry, 1 Atk. 502; Shum v. Hobbs, 3 Drewry, 93; Murray v. Tancred, 10 Sim. 465; McCartney v. Osburn, 118 Ill. 403; Walker v. Mower, 16 Beav. 365; Beck v. Burr, 7 id. 492; Anderson v. Felton, 1 Ired. Eq. 55; Allen v. Whitaker, 34 Ga. 6; Cogburn v. Ogilby, 18 id. 58; Collier v. Slaughter, 20 Ala. 263.
    When the gift is found in the direction to pay or divide, then the attainment of the age at which payment or division is to take place, is a condition precedent to the vesting. Leake v. Robinson, 2 Mer. 363; Locke v. Lambe, L. R. (4 Eq.) 372; Merry v. Hill, id. (8 Eq.) 619; Snow v. Snow, 49 Me. 159; Sansbury v. Read, 12 Ves. 75; Gifford v. Thorn, 1 Stockt. 702.
    Where there is no gift but by a direction to pay or -transfer “from and after” a given event, the vesting must be postponed until after that event has happened. Billingsley v. Wills, 3 Atk. 219; Leake v. Robinson, 2 Mer. 363; Judd v. Judd, 3 Sim. 525; Stead v. Platt, 18 Beav. 50; Booth v. Booth, 4 Ves. 399.
    The question of contingency is immaterial in these cases. Smell v. Dee, 2 Salk. 415.
    A legacy payable after the lapse of a certain time,—as, a number of years,—will lapse by the death of the legatee before that time. Smell v. Dee, 2 Salk. 415; Bruce v. Charlton, 13 Sim. 65; Spink v. Lewis, 3 Brown’s Ch. 355.
    Where a testator clearly expresses his intention that a legacy shall not vest until his debts are paid, it will be regarded. Bernard v. Montague, 1 Mer. 422; Valentine v. Ruste, 93 Ill. 585.
    So where the legacy is given only after the making of a sale. 1 Jarman on Wills, (Bigelow,) 603, 604; 2 id. 818;
      Gaskell v. Harman, 6 Ves. 159; Elwin v. Elwin, 8 id. 546; Leeds v. Wakefield, 10 Gray, 520; People v. Jennings, 44 Ill. 488; Valentine v. Ruste, 93 id. 585.
    So where the vesting is postponed until payment is actually made: Law v. Thompson, 4 Russ. 92.
    That the legacy is contingent and has therefore lapsed: Snow v. Snow, 49 Me. 159; Ackers v. Phillips, 3 C. & F. 665; Norris v. Huthwaite, cited 1 Brown’s Ch. 182; Gaskell v. Harman, 6 Ves. 159; Selby v. Whittaker, L. R. (6 Ch. Div.) 246; Bruce v. Charlton, 13 Sim. 68; Allen v. Whitaker, 34 Ga. 31; Travis v. Morrison, 28 Ala. 494; Anderson v. Felton, 1 Ired. Eq. 55.
    It is impossible to acquire a vested interest in a fund which is itself contingent. Fitzgerald v. Field, 1 Russ. 439; Hotchkin v. Humfrey, 2 Madd. 65.
    Mr. N. A. Woodward, for the appellant Jane A. Wright:
    Until the trusts were fully executed, no court could have taken the property out of the hands of the trustees, and passed it to the cestuis que trust. Lent v. Howard, 89 N. Y. 169; Graff v. Bonnett, 31 id. 9; Douglas v. Cruger, 80 id. 15.
    Neither the widow nor the son, in their lifetime, could sell, convey or create a lien upon the real estate which was vested in the trustees. Noyes v. Blakeman, 6 N. Y. 567; Van Epps v. Van Epps, 9 Paige, 237; Harnett v. McDougal, 8 Beav. 87.
    When there is no gift, but a direction to pay or divide at a future time, the vesting will not take place until that time arrives. 2 Williams on Executors, 1334; Warner v. Durant, 76 N. Y. 133; Vincent v. Newhouse, 83 id. 505. See, also, Newell v. Nichols, 75 N. Y. 78; Matteson v. Armstrong, 11 Hun, 245; Phipps v. Lord Mulgrave, 3 Ves. 613; Wadley v. North, 3 id. 364; Tawney v. Ward, 1 Beav. 563.
    Mr. Franklin Denison, and Mr. Thomas B. Marston, also for the appellant Jane Wright.

      Mr. Rufus King, for the appellees, contended, that William took a vested remainder,—citing 4 Kent’s Com. 198; 2 Jarman on Wills, 420, 436, 232; 2 Cooley’s Black. 162; 2 Redfield on Wills, 215, 237; 2 Williams on Executors, 1340, 1357; Preston on Estates, 70; Bingham on Descents, 56, 63; Ackless v. Seekright, Breese, 46; Hempstead v. Dickson, 20 Ill. 194; Ruffin v. Farmer, 72 id. 615; Land and Loan Co, v. Bonner, 75 id. 315; Green v. Hewitt, 97 id. 113; Smith v. West, 103 id. 332; Lunt v. Lunt, 108 id. 307; Marvin v. Ledwith, 111 id. 145; Railsback v. Lovejoy, 116 id. 442.
    Mr. George Burry, for a part of the appellees:
    A devise to a person, to he paid after debts and legacies, is not to be regarded as contingent because the estate may be exhausted. The debts and legacies are regarded only as charges upon the estate. Bowling v. Dobyn, 5 Dana, 438; 1 Jarman on Wills, *820; Theobald on Wills, (2d ed.) 476.
    Legal and equitable interests given by wills are governed by the same rules. The result is the same whether the son took an equitable or a legal remainder. The interposition of the trustees makes no difference. 1 Jarman on Wills, *811; Doe v. Considine, 6 Wall. 469; Phillips v. Ackers, 9 Cl. & F. 583.
    For definitions and illustrations of a vested remainder, see Smith v. West, 103 Ill. 337; Browne v. Lawrence, 3 Cush. 397.
    The law favors the vesting of real estates, and where there is any doubt as to the time at which the estate was intended to vest, it will be held to vest at the earliest possible time. 1 Jarman on Wills, (R. & T. ed. 1880,) *799; Theobald on Wills, (2d ed.) 400; Doe v. Considine, 6 Wall. 475.
    A devise of an ulterior estate following a devise of a particular estate, and expressed to be on or after a certain event, which event determines the first estate, gives a vested interest. 1 Jarman on Wills, *790, *805, *806; Theobald on Wills, (2d ed.) 405; Leadbeater v. Cross, 2 Q. B. D. 18; Weston v. Weston, 125 Mass. 268; Ackerman v. Gorton, 67 N. Y. 63;
      Wiggin v. Perkins, 6 Atl. R. 905; Santa Clara v. Sullivan, 6 N. E. R. 183; McArthur v. Scott, 113 U. S. 375.
    The postponement is for a reason not personal to the devisee, and such a case is an acknowledged exception to the rule. Leeming v. Sherratt, 2 Hare, 15; Bennett’s Trust, 3 K. & J. 280; Theobald on Wills, (2d ed.) 412; 1 Jarman on Wills, (Bigelow,) *835, note 1, *840.
    The direction to pay is not the only original gift in this will. The will itself, is a gift and equitable conveyance. Phillips v. Ackers, 9 Cl. & F. 583; Weston v. Weston, 125 Mass. 269; Strother v. Dutton, 1 DeG. & J. 675.
   Mr. Justice Magruder

delivered the opinion of the Court:

George T. Abbey died testate on August 10, 1872, leaving a widow, Julia M. Abbey, and one child, a son named William Abbey. The provisions of his will are as follows:

First—“I devise and bequeath to my beloved wife, and to Orville Olcott and William H. Eider, whom I hereby make, constitute and appoint executors of this my will, and trustees of my estate, all my real and personal property of every name and nature, except as hereinafter, mentioned; to have and to hold the same for the uses and purposes, and upon the trusts, hereinafter particularly set forth.

Second—“I give and bequeath to my beloved son, William, all my personal effects, except my money, notes, bonds, mortgages and evidences of debt, and except my double-barrelled No. 12- shot gun.

Third—“I order and direct my said executors, within three months from the date of my death, to convert into money sufficient of my property so to do, and to pay to my said son, William, the sum of $12,000 cash.

Fourth—“I give and bequeath to my friend,............ my No. 12 double-barrelled shot gun.

Fifth—“I order and direct my said executors to hold the remainder of my property, both real' and personal, for and -during the lifetime of my wife, or so long as she shall remain unmarried, and to pay the rents, issues and profits of the same to her.

Sixth—“Upon the marriage or death of my said wife, I -order and direct the other of my said trustees and executors to sell and convert into money sufficient of the remainder of my property to pay the following bequests, and to pay the same within three months from the death or marriage of my said wife, to-wit: $5000 to my sister, Harriet Abbey; $5000 to my sister, Mary Ann Welsh; $5000 to Jeannette Carpenter ; and in case of the death of either of above named legatees, I order and direct my said trustees to pay the amounts named to the heirs of the body of such deceased legatees.

Seventh—“I order and direct my said trustees to convey, assign and deliver all the rest and residue of my estate to my said son, William, as soon as said legacies shall have been, fully paid.

Eighth—“In order to enable my said executors and trustees "fully to carry into effect the objects of this my will, I hereby fully authorize them, and the survivors or survivor of them, to sell and convey, or to mortgage or convey by trust deed, such of my real estate as may be necessary, in their opinion, to provide the means for the payment of above legacies and the settlement of my estate. ”

William Abbey died intestate and unmarried on August 17, 1879, leaving, as his only heir-at-law, his mother, Mrs. Julia M. Abbey. .Julia M. Abbey, who did not re-marry, died testate on January 23, 1886, and, by the terms of her will, after making bequests of money and personal property to various individuals, gave $3000 to St. Luke’s Hospital of Chicago, $3000 to the Chicago Hospital for Women and Children, and $500 to the Graceland Cemetery Company of Chicago for the purpose of keeping her cemetery lot in good order. She appointed Orville Olcott and Eufus King her executors.

The appellant is a sister of George T. Abbey. The contention is between the heirs of George T. Abbey, who are his brothers and sisters, on the one side, and the executors and devisees under the will of Julia M. Abbey, on the other side. The property in dispute is the “rest and residue” of the 'estate, mentioned in the seventh clause of the will. The appellant claims, that William Abbey, having died before the death of his mother, had no interest in the property in question, which could descend to his heirs, and that, therefore, the said property fell back into the estate, as in case of intestacy, and went to the heirs of George T. Abbey. On the other hand, appellees claim, that William Abbey owned, at the time of his death, an inheritable interest in such “rest and residue” of the estate, and that such interest descended to his mother, as his only heir-at-law, and passed, by the terms of her will, to the appellees.

The trustees under the will of George T. Abbey took title to two parcels of land. One of these was mortgaged to raise $12,000 to pay to William. Afterwards they sold one parcel for $93,000 and out of the said proceeds paid the mortgage and the legacies of $15,000 and certain expenses. There now remains of the $93,000 the'-sum of $60,000. They also hold the other parcel of land, and the title thereto is in controversy in this suit. The decree of the Superior Court of Cook county, from which this appeal is taken, directed the said trustees to pay the $6.0,000 to the executors of Julia M. Abbey to be distributed according to the terms of her will, and to convey the parcel of land remaining unsold to the persons entitled thereto under the will of the said Julia.

The only question in the case is whether the residuary interest in the estate vested in William Abbey at the time of his father’s death. If William’s interest was a vested one, it passed to his mother, when he died.

An estate is vested, when there is an immediate right of present enjoyment, or a present fixed right of future enjoyment. It gives a legal or equitable seizin. A vested remainder is a fixed interest, to take effect in possession after a particular estate is spent, (4 Kent, 202,) and is, thereafter, invariably fixed to a determinate person. (Bowling v. Dobyn, 5 Dana, 441.) It takes effect in interest and right immediately on the death of the testator, although it may not take effect, indeed, if it be a remainder, it can not take effect, in possession and enjoyment, until the death of the devisee for life, or other determination of the particular estate. (Brown v. Lawrence, 3 Cush. 397.) In case of a vested remainder, a present interest-passes to a certain and definite person, to be enjoyed in futuro r (Doe v. Considine, 6 Wall. 474.) Every remainder-man may die without issue before the death of the tenant for life. It is the present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty, that tlm possession tuill become vacant before the estate limited in remainder determines, that distinguishes a vested from a contingent remainder. When the event, on which the preceding estate is limited, must happen, and when it also may happen before the expiration of the estate limited in remainder, that remainder is vested. (4 Kent, 203.) It is also vested when it is limited to a person in esse and ascertained, to take effect by words of express limitation on the determination of the preceding particular estate. Preston on Estates, 70.

"Viewed in the light of the definitions, here quoted, the interest of William Abbey was a vested one. The testator devised and bequeathed all his real and personal property (except that embraced in the second and fourth clauses) to his executors and trustees “to have and to hold the same for the uses and purposes and upon the trusts, ” mentioned in clauses 3, 5, 6 and 7.

A will takes effect at the death of the testator. At the death of George T. Abbey the legal title to all his property vested in the trustees for the uses and purposes above set forth. It so vested at that time for all such purposes and for one as much as another. As soon as the testator died, the- trustees at once took title to the residue, named in clause 7, and at once and thereafter held it in trust to be conveyed, assigned and delivered to William, when the proper time should come. It is true, that his enjoyment of it was to be postponed, until a future period. But their holding it in trust to be conveyed to him began immediately upon his father’s death. They took their legal title at that time, and, at the same time, he took the equitable title. At his father’s death there vested in him a present equitable right to have a conveyance from the trustees, when his mother’s life estate should determine, subject to the payment of the legacies of $15,000; he then had “a present fixed right, ” although only an equitable one, of future enjoyment. This right vested, not in a person thereafter to be born, but in a person, definite and ascertained, and then in being. The preceding estate was ' limited upon the death of Mrs. Abbey, an event which “must happen.

The same general principles, which regulate the vesting of devises of real estate, apply, to a considerable extent, to gifts of personalty. But in regard to the vesting of personal legacies, the payment of which is postponed to a period, subsequent to the decease of the testator, the general rule is, that where there is no original gift, but only a direction to pay at a future time, the vesting will be postponed till after that time. 1 Jarman on Wills, (Bigelow’s ed.) pp. 833, 836, 839. If futurity is annexed to the substance of the gift, the vesting is suspended; but, if it appears to relate to the time of payment only, the legacy vests instanter. (Idem.) There is a distinction between a gift of a legacy to a person to be paid to him at a future time, and a direction to pay or transfer the legacy to him at a future time. In the former case, the legacy is considered as vesting in him immediately; but where the gift is merely by a direction to pay to him .at a future time, the legacy does not vest forthwith; until' the time arrives, he has no vested interest in the bequest. Jones v. MacMilwain, 1 Russ. 223.

But even though there be no other gift than in the direction to pay or distribute in futiwo, yet, if such payment or distribution appear to be postponed for the' convenience of the fund or property, as where the future gift is postponed to let in some other interest, for instance, if there is a prior gift for life, or a bequest to trustees to pay debts, and a direction to pay upon the decease of the legatee for life, or after payment of the debts, the gift in remainder vests at once, and will not be deferred until the period in question. . But where the payment is deferred for reasons personal to the legatee, the gift will not vest till the appointed time. 2 Jar-man on Wills, (R. & T.’s ed.) 458; Theobald’s Law of Wills, 412. Thus, a gift to a person, if or when he shall attain a certain age, will not vest, until the age is attained. (Idem.) In other words, if the reason for the postponement is the position of the fund, the bequest in remainder vests at once; but if it is the position of the legatee, the remainder is contingent. In re Bennett’s Trusts, 3 Kay & J. 280.

An application of these further definitions to the case in hand will show, that the interest of William Abbey vested at the death of his father. Even if it be admitted that there was no original gift to him, but only a direction to pay, or to “convey, assign and deliver” at a future time, yet the postponement was merely for the convenience of the property; it was for the purpose of letting in the life interest of his mother; there was a prior gift of the “rents, issues and profits” to her; there was a direction to the trustees to “convey, assign and deliver” to him, after the determination of the life estate and after the payment of legacies. The reason of the postponement was not personal to him; there was no postponement of payment until he should arrive at the age of twenty-one years, or at any other age.

The rules in regard to vested and contingent remainders are, in many respects, so technical and artificial, that exceptions, like that above indicated, have been created to relieve their harshness. It has long been a settled rule of construction in the courts of England and America, that estates, legal or equitable, given by will, should always be regarded as vesting immediately, unless the testator has, by very clear words, manifested an intention, that they should be contingent on a future event. (McArthur v. Scott, 113 U. S. 375.) No such intention is apparent in the will, now under consideration.

The testator in this case evidently intended, that the whole of the remainder of his estate, mentioned in clause 5, should be used for the support of his wife as long as she lived, or remained unmarried, and that, upon her death or marriage, and after the payment of certain legacies, the residue should belong to his son. He probably never thought of the contingency of his son’s death before that of his wife. He disposed of his whole estate, and it does not appear, that he designed any portion of it to be intestate. There is certainly no evidence of any intention, that his brothers and sisters should have the residue, named in clause 7. It has been said, that the idea of any one deliberately purposing to die testate as to a portion of his estate and intestate as to another portion is so unusual in the history of testamentary dispositions as to justify almost any construction to avoid it. 2 Bed-field on Wills, 235; 2 Jarman on Wills, (R. & T. ed.) 469.

But it is urged, that no interest vested in William Abbey at his father’s death for the reason, that the will provides for the intervention of trustees and for a conveyance by such trustees. It is well settled, however, that there may be a .vested remainder in an equitable, as well as in a legal estate.

In Female Academy v. Sullivan, 116 Ill. 375, the estate was devised to the widow in trust for the support of herself and children during her lifetime, and, at her death, to descend to the children. One of the children died before her mother, and made' a will, devising her interest in the estate; that interest was only an equitable one, because the legal title was in. the mother, as trustee-; we held, however, that such interest was a devisable one, and was a vested remainder. In Phillips v. Ackers, 9 Cl. & F. 583, it was held, that, where the immediate interest was vested in trustees, who were directed to assign and convey at a future time, the vesting of the remainder was not postponed until that time, and the interest was not contingent; the Lord Chancellor sáid, “thé only question is this, whether a different construction should be put on this will, which conveys an equitable estate, from-that which the learned judges have put upon the will as applied to a legal estate, or, in other words, whether the direction to convey makes any difference with respect to the disposition of the property; I am clearly of the opinion, that it does not. ” In Weston v. Weston, 125 Mass. 268, the will gave the residue to trustees to support the testator’s widow during her life, and provided as follows: “As soon as may be after the decease of my said wife my said trustees or their successors shall convey, transfer or pay to my son and daughter in equal shares all the estate here given in trust; ” the court say, “we are of opinion, that the will gave * * * a vested equitable interest, expectant on the termination of the life estate. * * * The interest in the residue was given by the will, not by the conveyance from the trustees. Such conveyance is necessary only to make that a legal estate •or interest, which, under the will, and prior to the conveyance, was an equitable interest. ” To the same effect is Doe v. Considine, 6 Wall. 469.

It is said, that, in this case, the interest in question was not a vested one at the death of the testator, for the alleged reason, that the estate in remainder was not to take effect at the expiration of the life 'estate, but after the lapse of three months thereafter, during which time property was to be sold, and, out of the proceeds of such sales, legacies to the amount of $15,000 were to be paid. This position, however, is not-sound. A devise to a person after the payment of debts and legacies is not contingent, until such debts and legacies are' paid; such a devise confers an immediately vested interest; the words of apparent postponement are considered only as creating a charge. 2 Jarman on Wills, (R. & T.’s ed.) 476; 2 Redfield on Wills, 210-232; Bowling v. Dobyn, 5 Dana, 438; Railsback v. Lovejoy, 116 Ill. 442; 1 Jarman on Wills, (Bigelow’s ed.) 820; Theobald on Wills, 476. Nor does the power of sale prevent the vesting of the estate; the estate vests, subject to such power. The legacies, named in clause 6, were a charge upon the estate, and William Abbey took a vested remainder, subject to such charge. The equitable title vested in him in remainder, subject to be divested'to so-great an extent or for such portions of the property, as might be necessary to discharge the legacies.

In Bowling v. Dobyn, supra, the court say: “From all these authorities, it seems clear, whether a devise is made to an. executor for the payment of debts, or a power to sell for that purpose, or a charge is otherwise imposed on the estate for that object, or' other special objects, that it. has- been construed as a charge merely, and riot as an impediment to the devise or descent of the fee or freehold. ”

In Railsback v. Lovejoy, supra, it was held, that a power of sale, conferred by a will, did not make the remainder, after the expiration of the life estate, a contingent remainder.

The decree of the Superior Court is affirmed. ■

Decree affirmed.