author: Mr. Chief Justice Scholfield

text:
    The Hannibal and St. Joseph Railroad Company v. Elizabeth Martin.

      Filed at Springfield September 27, 1884.

    1. Negligence — in making up a railway train, after receiving a passenger. If a railway company receives a passenger in one of its cars for passage before making up the train of which such car is to be a part, the law requires the company to make up its train, couple, manage and control its cars and engines, in such a careful, skillful and prudent manner as to carry the passenger with reasonable safety, and it will be liable for an injury to the passenger resulting from its neglect of this duty, when such passenger is not wanting in ordinary care.
    2. Same — contributory negligence — entering a car before the train is made up, on invitation of company's employe. The fact that an employe of a railway company invites one desiring transportation on its cars, to come aboard the train before it .is made up, will not excuse the passenger from the charge of negligence in rushing into danger plainly seen; but even then, if no injury follows the act of entering the cars on the invitation, such conduct on the part of the passenger will not defeat his remedy against the company for subsequent acts of negligence resulting in his injury, when he is not also guilty of negligence conducing to the same.
    3. Same — contributory negligence — in passing from one car to another, on suggestion by the conductor. Where a passenger in a railway coach which was overcrowded, was informed, by the announcement of the conductor in charge, that another car had been added in front, and the adding of the car had been felt when it was pushed back, and it was found in proper position for the reception of passengers, though in fact not securely coupled, so that just as such passenger was in the act of stepping from the platform of the rear coach to the forward one, the latter moved forward suddenly, causing him to fall to the ground, whereby he received a serious injury, it was held, that the passenger had the right to assume he could pass from the one car to the other with safety, and in so attempting was not chargeable with want of ordinary care.

      é. Same — of the ownership of the railway and of the cars running thereon being in different companies — as affecting the question of liability. A passenger who purchases a ticket for conveyance over a defendant company’s railroad, and is received by the defendant in a car run and operated by it for the purpose of carrying passengers, and who, while so on such car, is injured through the carelessness and negligence of the defendant, without fault or negligence on his part, is entitled to recover damages from the defendant for such injury, whether the defendant owned the ear and engine or not.
    5. Where the trains of a railway corporation are made up by the employes of another railroad company, and on the track of the latter, and cars used to make up the same belong to other companies, if the use of the cars and tracks and labor in making up such trains is to enable such first named corporation to exercise its function and perform its duties as a common carrier, such cars, tracks and servants, so far as the rights of its passengers who may receive an injury are concerned, must be regarded as the cars, tracks and servants of the company so using the same.
    6. Same — right of recovery on either one of two grounds. In an action by a passenger against a railroad company to recover for a personal injury, two counts of the declaration charged a liability for a failure to make up the train and sufficiently to couple its cars, while the other two charged the negligence to be the moving the engine and cars attached thereto without sufficiently and securely coupling the cars: Held, that proof of either ground was sufficient to authorize a recovery, and that an instruction embracing this principle was not erroneous.
    7. Measure oe damages — injury from negligence — mental and bodily suffering. Where suffering in body and mind is the result of injuries caused by negligence, it is proper to take it into consideration in estimating the amount of damages.
    8. Instructions — in action for personal injury from negligence — as containing improper element of damage, and assuming right of recovery. In an action by a passenger against a railway company to recover damages for a personal injury caused by the negligence of the defendant’s servants, the court instructed the jury that in determining the amount of damages the plaintiff was entitled to recover, if any, they had the right and should take into consideration all the facts and circumstances in evidence, the nature and extent of the plaintiff’s physical injuries', if any, testified about by the witnesses, his suffering in body or mind, if any, resulting from such injuries, and also such prospective suffering and loss of health, if any, as they might believe, from all the evidence before them, he has sustained or will sustain. It was objected that it made mental suffering an element of damage, and practically assumed the plaintiff was entitled to damages, etc.: Held, that the objections were not well founded.
    9. Same — as to excluding consideration of damages caused by want of care. While it may be true that a plaintiff receiving a personal injury may not enhance his claim for damages or recover for any aggravation of his injuries produced by his own want of care or neglect, it is not necessary that the plaintiff’s instructions should exclude the idea that he may. The defendant may have an instruction based on that hypothesis.
    10. Same — as ignoring an important fact. An instruction stating correctly what acts of negligence on the part of the defendant make out a case for a recovery, which in the same connection adds that if the injury received was without any fault or negligence on the part of the plaintiff, the defendant is liable, is not faulty, as ignoring the question as to the plaintiff’s want of ordinary care and prudence.
    11. Same — in respect to two hypotheses. Where a case presents two hypotheses, an instruction based upon one, only, which states the law correctly as to that, is not erroneous in not stating the law upon the other, when it does not assume to do so, especially when the other party procures other instructions expressing the law upon that hypothesis.
    12. Same — generality—in respect to several counts. Where there is evidence tending to prove each of several counts in a declaration, all seeking a recovery for a single injury, but on different grounds, it is sufficient, if the instructions are general, if the principles announced are applicable to the declaration generally. The other party may, by instruction, call the attention of the jury to the allegations of the several counts, if desired.
    13. Same — whether based on evidence. Where there is evidence tending to prove a material fact in issue, an instruction based upon the belief of such fact from the evidence, is not erroneous as assuming such fact.
    14. Allegations and proofs — as to the date of an occurrence. In a suit to recover for a personal injury alleged to have been received through negligence, on a day named, the instructions need not be limited to what happened on that day, when only one injury is claimed. The exact date in such case is never important, except to save a misunderstanding as to the transaction actually involved.
    15. Appeal — reviewing disputed questions of fact. In actions to recover for a personal injury on the ground of negligence, controverted questions of fact found by the trial and Appellate courts in the same way, can not be reviewed by this court; nor where there is evidence tending to prove an allegation, can this court inquire into its weight.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Adams county; the Hon. John H. Williams, Judge, presiding.
    Messrs. Marsh & McFadon, for the appellant;
    The second instruction, near its close, presupposes that plaintiff “was precipitated and thrown to the ground, ” while she fell hy her own weight, which is essentially different. (Garrison v. Chicago, 97 Ill. 68.) There was nothing in the evidence on which to base the instruction,' and it should not have been given. Railroad Co. v. Benton, 69 Ill. 174.

      This instruction also entirely ignores the question whether an ordinarily prudent person would have attempted to pass from one car to another, on the request of a servant of appellant, under the circumstances. Railroad Co. v. Sykes, 96 Ill. 171; Railway Co. v. Krouse, 30 Ohio St. 231; Railroad Co. v. Randolph, 53 Ill. 512; Price v. Railway Co. 72 Mo. 418; Dots v. Railway Co. 59 id. 37.
    It is also bad in telling the jury that a recovery might be had for an injury by either one of the negligent acts charged. The charge of negligence being in the conjunctive, the plaintiff was bound by the description of' her tort as laid in the conjunctive. Butterson v. Railway Co. 49 Mich. 187; Railroad Co. v. Marcott, 41 id. 435; Bloomington v. Goodrich, 88 Ill. 558; 1 Chitty’s Pleading, (7th Am. ed.) 427.
    On such an allegation of negligence it was error to tell the jury that plaintiff could recover if negligence in either the moving of the engine or coupling cars was proven. Price v. Railway Co. 72 Mo. 416.
    The second instruction, in so far as it relates to the damages, is bad, because it fails to exclude from the jury the idea that appellee could recover for any aggravation of her injuries by her own neglect in treatment. Railway Co. v. Rector, 104 Ill. 305; Railway Co. v. Eddy, 72 id. 140; Hutchinson on Carriers, sec. 809.
    The fourth instruction for appellee was erroneous, in directing the jury that mental suffering was a proper element of damages. Joch v. Dankwardt, 85 Ill. 332; Railroad Co. v. Sutton, 53 id. 399; 2 Greenleaf on Evidence, sec. 267.
    Messrs. Ewing & Hamilton, for the appellee:
    The plaintiff’s first and second instructions do not assume that defendant’s train was already made up. It is not necessary that a train be made up before one can become a passenger. Railroad Co. v. Perry, 58 Ga. 461; Railroad Co. v. Martin, 11 Bradw. 389.

      When an instruction is given, this court will presume, unless the Appellate Court certifies otherwise, that there was evidence on which to base it. Railway Co. v. Henks, 91 Ill. 409.
    The circuit court did not err in giving appellee’s second instruction to the jury. Railroad Co. v. Martin, 11 Bradw. 388. .
    Appellee entered the train after it was in position for the reception of passengers, and had been announced as ready by the conductor. It was not negligence for appellee to pass from one car to another, under the direction of an employe on the train, while the train was standing still. Railroad Co. v. Sykes, 96 III. 172.
    Appellee was only bound to exercise ordinary diligence in endeavoring to be cured. She was not required to employ the most skilled surgeon, and is not responsible for her surgeon’s mistakes, if she used ordinary care and diligence in securing medical attendance. Appellee’s third instruction was properly given. Railroad Co. v. Martin, 11 Bradw. 388; Railway Co. v. Peyton, 106 Ill. 534.
    Appellee’s fourth instruction was properly given to the jury. Railroad Co. v. Perry, 58 Ga. 461.
    Appellee’s fifth instruction correctly states the law. It limits the mental suffering for which appellee can recover, to such as resulted from the physical injuries complained of. Railroad Co. v. Stables, 62 Ill. 320.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

Appellee and her husband having procured tickets entitling them to be carried from Quincy, in this State, to Kansas City, in Missouri, took seats in the waiting room at the Quincy depot some minutes before the time fixed for the departure of appellant’s train. She introduced evidence, upon the trial, to the effect that after they had been seated thus for a brief time, the conductor of appellant’s train entered the waiting room and publicly announced that appellant’s train for Kansas City was ready for departure; that thereupon appellee and her husband, and a number of other persons, arose and proceeded to the train, which was standing alongside the platform used by appellant, and entered the hindmost car in the train; that this car being full, they passed through it, and entered the next car forward, and that car also being full, they then passed through it and into the next forward car, which was also full; that there some man arose and gave appellee a seat, which she accepted, her husband meanwhile being compelled to remain standing; that about the time appellee took the seat thus given her, an employe of appellant entered the car and requested the passengers to be patient for a moment, promising that they would add another car to the train; that soon after this announcement there was the jar forward of one car striking against another, and a moment later an employe of appellant entered the ear in which appellee was sitting, through its forward door, and notified the passengers that the car in front was ready; that thereupon some ten or twelve persons passed on and into the car in front, and appellee attempted to also do so, but just as she caught the rail of the forward car, and was in the act of stepping upon the platform of that car, it moved forward, leaving the car from which she was trying to pass, stationary, and by reason thereof she fell or was precipitated to the ground. She was soon after taken up badly injured, and in an insensible condition, and placed in the car in which she had been seated. She remained in the car, and in a brief time became conscious, and continued her journey notwithstanding her injuries. Appellant owns no track or depot in Quincy. Its cars cross 'the river and enter the depot of the Chicago, Burlington and Quincy Railroad Company on the tracks of that company, and its trains are made up in Quincy by employes of the Chicago, Burlington and Quincy Railroad Company.

The instructions given to the jury upon the trial, at the instance of appellee, are as follows :

“1. The court instructs the jury, that if they believe,'from all the evidence in this case, that on or about the 16th day of February, 1880, the defendant was controlling and operating a train of cars on a railroad in this county, and that the defendant received the plaintiff on its cars as a passenger, for hire, then the court instructs the jury that the defendant was bound to make up its train, couple its cars, and manage and control its cars and engines in such a careful, skillful and prudent manner as to carry the plaintiff with reasonable safety as such passenger.
“2. If the jury believe, from all the evidence in this case, that the plaintiff, on or about the 16th day of February, A. D. 1880, had purchased a ticket over the defendant’s road from the city of Quincy, Illinois, to Kansas City, Missouri, and on or about that day became a passenger on the defendant’s train of cars, to be carried from said Quincy to said Kansas City, then the law imposed upon the defendant the duty of using all necessary and reasonable skill, care and caution in making up and running said train, necessary for the reasonably sale, conveyance of the plaintiff as such passenger. And if the jury further believe, from the evidence, that while the plaintiff was so a passenger on defendant’s train of cars, she was requested by an employe or servant of the defendant to pass from the car in which she was, to the car immediately in front thereof, and that while she was in the act of passing from one car to the other in obedience to such request, by the carelessness and negligence of the defendant in making up its said train, and failing to sufficiently couple its said cars, or by the carelessness and negligence of the defendant in moving its engine and the cars attached thereto without sufficiently and securely coupling its cars, and without any fault or negligence on the part of the plaintiff, the engine and a part of the train of the defendant was started forward, and the ear from which the plaintiff was passing was detached and separated from the car into which she was going, and the plaintiff was thereby, without any negligence or fault of her own, precipitated and thrown between said cars to the ground, and thereby injured, then the jury should find the defendant guilty, and assess the plaintiff’s damages at such sum, not exceeding $10,000, as they may believe, from all the evidence, she has sustained.
“3. Although the jury may believe, from the evidence, that the defendant’s train of cars, testified about by the witnesses in this ease, was. made up by the servants and employes of the Chicago, Burlington and Quincy Railroad Company, and that such servants and employes had the control and management of said cars until said train was made up and ready to start on its run over the defendant’s road, — still, if the jury further believe, from the evidence, that said servants and employes of the Chicago, Burlington and Quincy Railroad Company so made up and had control of said train and with the consent of the defendant, and under an agreement between the defendant and said Chicago, Burlington and Quincy Railroad Company, then the court instructs the jury, that for the said purpose of making up and managing said train and cars until said train was ready to start on its regular run, the said servants and employes of the Chicago, Burlington and Quincy Railroad Company so engaged were •the servants and employes of the defendant.
“4. The court instructs the jury, that in this case it is immaterial whether the defendant actually owned the cars or the engine forming the train on which plaintiff was a passenger at the time of the supposed injury testified about, or not; but if the jury believe, from all the evidence in this case, that the pi n in tiff had purchased a ticket for her conveyance as a passenger over the railroad of the defendant, and had been received by the defendant in a ear run and operated by said defendant, for the purpose of carrying her as a passenger, and that while so a passenger ón a car run and operated by the defendant, by the carelessness and negligence of the defendant, and without any fault or negligence on her part, the plaintiff was injured in manner and form as alleged in the declaration in this case or some count thereof, then the jury should find the defendant guilty, and assess the plaintiff’s damages at such amount as,- from all the facts and circumstances in evidence, they believe she has sustained, not exceeding $10,000.
“ 5. In determining the amount of damages the plaintiff is entitled to recover in this case, if any, the jury have a right to, and they should, take into consideration all the facts and circumstances in evidence before them, the nature and extent of the plaintiff’s physical injuries, if any, testified about by the witnesses in this case, her suffering in body and mind, if any, resulting from such injuries, and also such prospective suffering and loss of health, if any, as the jury may believe, from all the evidence before them in this case, she has sustained or will sustain by reason of such injuries. ”

Numerous objections are urged against these instructions, and such as we deem important will be noticed in the order in which they are urged in appellant’s argument.

It is contended the first instruction, and the first part of the second instruction, are bad, because in each a disputed fact in the case is assumed, namely, that at the time plaintiff was injured the train on which she was injured was already made up. We can not concur in this view. The question whether appellee was received by appellant as a passenger on its train, is left to the jury for their determination, as a question of, fact, from the evidence. If they shall find that she was thus received, they are told what then was the duty of appellant in regard to making up its train. All that is assumed is, that a passenger may be received by the carrier on its train before the train is completely made up, and of the correctness of this there cari be no question. A carrier is under no obligation to do so, but it may if it will; and when it does so, the duties declared in the instructions legally follow. Instances are quite common where, as appellee claims was the fact here, after a train is supposed to be fully made up and passengers are received upon it, the number of passengers is discovered to be too great for the number of cars in the train, and it becomes necessary to add other cars; and in such eases, and in all cases where, by the consent of those in charge of the train, passengers are admitted to seats in the cars with a view to transportation, before the train is made up, the railroad company owes to the passengers the duty in making up its train here pointed out.

Again, it is contended that both these instructions are bad, because not limited to what happened on the 16th day of February, 1880. We can not conceive how this can be important, since it is not claimed on any side that appellee was injured oftener than once, or had more than one cause of action on the ground of negligence, against appellant. The exact date in such cases can never be important save to prevent a misunderstanding as to the transaction actually involved in the suit. Appellant claims but one transaction, and that is detailed, as seen, by witnesses on each side. Whether its actual date was the 16th of February, or on any other day in that year, is not perceived to be of any importance.

Appellant also contends that the second instruction is obnoxious to these further objections: First, it presupposes, near its close, that appellee was precipitated and thrown to the ground, which, it is insisted, is not sustained by the evidence ; second, it ignores the question whether an ordinarily prudent person would have passed from one car to the other, in obedience to the request of the servant of appellant mentioned in the instruction, at the time when- and under the circumstances under which appellee attempted to do so; third, it ignores the question whether an ordinarily prudent person would, under the facts of the case, have gotten upon the train at all, and would have been where appellee was at the time of receiving her injury; fourth, it tells the jury that if appellee was injured, either by the carelessness and negligence of appellant in making up its trains and failing to sufficiently couple its cars, or by the carelessness and negligence of appellant in moving its engine and the cars attached thereto, appellee ought to recover, ivhereas these things are charged in the declaration, conjunctively; fifth, there was no evidence that the engine and part of the train of appellant were started forward by reason of the carelessness of appellant in coupling its cars. We deem each of these objections untenable.

First — Whether the evidence sustains the allegation that appellee ivas precipitated and thrown to the ground, was for the Appellate Court to determine. There was evidence tending to prove the allegation, and we can not inquire into the weight of it. Indeed, if the testimony given by appellee and her husband is believed, the proof was ample. They say, when she ivas in the act of passing from one car to the other she reached forward and caught the railing of the forward car, and before she could step on to its platform it moved away from the car on the platform of which she was standing, and thus necessarily pulled her out of balance, and thereby precipitated her to the ground.

Second, — The instruction expressly provides that it shall appear that appellee acted “without any fault or negligence” on her part. If an ordinarily prudent person would not have passed from one car to the other, in obedience to the request of the servant, under the circumstances, it is impossible that appellee could have done so without any fault or negligence on her part. The principle contended for under this objection is practically and sufficiently expressed in the instruction.

Third — This objection is but a repetition, in a little different form, of the second objection, and the answer to that is likewise an answer to this. Ordinarily, where an employe upon a train makes public announcement of any matter affecting the safety or convenience of the passengers in being carried upon the train, — as, for instance, where a car is overcrowded, that another coach has been added and is in readiness for their reception or the reception of such as choose to enter it, — and no one connected with the train contradicts such announcement, passengers are authorized to assume and act upon its truth. And so here, as claimed by appellee, if they were notified, first, that a car would be added, and after hearing the noise and feeling the motion caused by one car bumping against another, they were informed that such car had been added, they were justified in assuming that to be a fact. Undoubtedly, if, when the car door was opened, they had perceived no car was there, or if near, that it was too far from the car on which they were, to be reached by a step, they must have acted upon the knowledge of what they thus saw, and not then upon the false declaration of the employe; but seeing the car in proper place on the train, they would have the right to assume that it was there for the purpose declared by the employe, and that it was safe to attempt to pass into it. They could not be expected to know that it was not properly coupled.

Fowi'th — Under the first and fourth counts the liability charged upon appellant, is because of its failing to make up its train, and to sufficiently couple its ears, and the liability charged in the second and third counts is because of appellant’s moving its engine and cars attached thereto without sufficiently and securely coupling its cars, — hence, if, as the instruction told the jury, appellee was injured either by the carelessness and negligence of appellant in making up its trains and failing to sufficiently couple its cars, she was entitled to recover, and this under the first and fourth counts; or, if she was injured by the carelessness and negligence of appellant in moving its engine and the cars attached thereto without sufficiently and securely coupling its ears, she was also entitled to recover, and this under the second and third counts. The alternative indicates simply the distinct grounds of action relied upon in the different sets of counts. Proof of either was sufficient.

Fifth — The instruction does not submit the question to the jury whether the engine and part of train on which appellee was, were started forward by reason of the carelessness of appellant in coupling its cars. The question submitted is, whether appellant, while appellee, in obedience to the request of an employe of appellant, and without any fault or negligence on her part, was passing from one car to another, by carelessness and negligence in moving its engine with the cars attached thereto when they were not sufficiently and securely coupled, precipitated and threw her to the ground. This is not the precise phraseology, but it is the clear meaning of that used, and the evidence tends to prove that appellee was thus injured. It needs no demonstration that if appellant invited passengers into a coach, — or what, in effect, is the same thing, notified them it was ready for the reception of passengers, — and they thereupon proceeded to enter the coach, but before they had time to do so the engine was started forward, and the cars parted because they were not properly coupled, and one was injured thereby, appellant was guilty of such negligence as renders it responsible for the injury thus done.

The instruction is not entirely free from objection, but we are of opinion that it could not have misled the jury, and that appellant was not materially prejudiced by it.

. The third instruction is objected to because it does not state the law upon the hypothesis that the evidence shows that appellee left the waiting-room and got upon the train before it had been placed in position to receive passengers, etc. It is enough to say the third instruction does not assume to express what is the law upon that hypothesis. It correctly expresses the law upon the hypothesis it assumes, and the court, at the instance of appellant, in other instructions expressed the law upon that hypothesis.

Objection is urged against the fifth instruction, on the grounds that it informs the jury that mental suffering was a proper element of damages; that it practically assumes that appellee is entitled to recover damages, and that it tells the jury they should take into consideration the various elements of damages therein mentioned, etc. The objection, in our opinion, is not well taken on either ground. Where suffering in body and mind is the result of injuries caused by negligence, it is proper to take them into consideration in estimating the amount of damages. (Indianapolis and St. Louis R. R. Co. v. Stables, 62 Ill. 320.) The instruction does not assume that appellee is entitled to recover damages, but leaves that question to be determined by the jury, and the elements pointed out are those proper for the consideration of the jury. The discretion of the jury in exercising an intelligent judgment is not, as counsel seem to suppose, interfered with. '

Four objections are urged against the fourth instruction: First, because it assumes that appellee was a passenger upon a train of appellant at the time she received her injuries; second, because there was no evidence that at the time appellee received her injuries, the car she was in, was run and operated by appellant; third, because it does not exclude from the jury the idea that appellee could not recover for any aggravation of her injuries, or any injuries produced by her own neglect in procuring proper treatment; and fourth, the court should not have submitted the question of appellee’s right to recover, under the third and fourth counts of the declaration, to the jury* as is done by this instruction, because there is no evidence that the accident happened in the manner therein stated. These objections are all susceptible of satisfactory answers,

First — The instruction is not directed to the question whether appellee was a passenger on the train of appellant at the time she received her injuries, but to the question of the ownership of the cars and engine composing the train on which she was at that time, and correctly lays down the law that it is sufficient if appellee had purchased a ticket for her conveyance as a passenger over the railroad of appellant, and had been received by appellant in a cal’ run and operated by it, for the purpose of carrying her as a passenger, etc. The question whether appellee was a passenger is fully and fairly presented by instructions given at the instance of appellee, and there is nothing in this repugnant to those. It is here fairly left to the jury to determine, from the evidence, whether the contemplated hypothesis upon which appellant is to be held liable, exists.

Second — The evidence shows that the train was made up by employes of the Chicago, Burlington and Quincy Bail-road Company, and on its tracks, but for the appellant, and although a portion of the cars in the train came from the Chicago, Burlington and Quincy company, and the balance came from the Wabash, St. Louis and Pacific Eailway Company, when united they constituted appellant’s train; and the use of the ears and tracks, and the labor in making up the train, were all to enable appellant to exercise its functions and perform its duties as a common carrier, and therefore the cars and tracks, and the servants employed in making up the train, so far as the rights of appellee are concerned, are to be regarded as the cars, tracks and servants of appellant. Wabash, St. Louis and Pacific Ry. Co. v. Peyton, 106 Ill. 534.

Third — It was unnecessary that this instruction should exclude from the jury the idea that appellee could not recover for any aggravation of her injuries, etc., produced by her own neglect. That idea is not included in the instruction, and there is nothing in it repugnant to the principle contended for by appellant. Under appellee’s theory of the case, her injuries were not thus augmented. If appellant desired an instruction upon the hypothesis that the evidence showed appellee’s injuries were aggravated by her own neglect, it was entitled to, as it did, have the court, at its instance, to specially instruct the jury to that effect. Peoria and Pekin Union Ry. Co. v. Clayherg, 107 Ill. 644.

Fourth — In our opinion, there was evidence tending to prove each count of the declaration. With its weight this court has nothing to do. Apart from this, however, the instruction is general, and if its principles are applicable to the declaration generally, it is sufficient. It was the privilege of appellant to call the attention of the jury to the different allegations of the several counts, if it chose to do so, but it is sufficient if the law, as laid down at the instance of appellee, is correct and applicable to the ease under either count.

Appellant contends that the court erred in modifying its tenth instruction as asked. As asked, it reads thus:

“Even if the jury believe, from the evidence, that the plaintiff in this case was injured on a passenger train of the Hannibal and St.'Joseph Eailroad Company, on the 16th day of February, 1880, yet if the jury further believe, from the evidence, that the said company, at said time, had a platform in the depot of the Chicago, Burlington and Quincy Eailroad Company, designated by it for the reception of its passengers, and that said plaintiff was injured while said train was being made up and before said train had been placed in position for the reception of its passengers at said platform, the court instructs the jury that the relation of carrier and passenger did not subsist, at the time of the occurrence of said injury, between the plaintiff and the defendant, and the verdict of the jury should be for the defendant. ”

The court modified it by adding: “Unless the jury further believe, from the evidence, that some agent or servant of the defendant had notified plaintiff that said train was ready for the reception of passengers, and that in pursuance of such notice said plaintiff had got on said train of cars before she received the alleged injury, if the jury believe, from the evidence, she received any injury, ”

The objection taken to this modification is, that the fact that some agent or servant of appellant notified appellee that the train was ready, would not have justified her in rushing upon a train not ready for passengers. We concur with appellant in the view that if appellee saw a danger before her, she would not be justified in rushing upon it merely because appellant’s agent or servant invited her to do so; but if appellant’s servant or agent, as contemplated in this modification, told her that a train was ready for the reception of passengers, and she thereupon entered the train, she became a passenger. She was there by appellant’s invitation, and was under its control by the consent of both. There is no pretence that she incurred any danger in getting on the train, — i. e., in becoming a passenger. Her injury was received afterwards, and in passing from one car to another for more ample accommodations.

Many of the questions discussed in the printed arguments before us relate to the effect and weight of the evidence, and are consequently finally settled by the judgment of the Appellate Court.

We are unable to perceive any such substantial error in the record as would justify a reversal of the judgment below, and it will therefore be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Dickey

license: Public Domain

text:
    Anna Danforth v. George W. Danforth.

      Filed at Ottawa September 27, 1884.

    Death of defendant pending suit — entering judgment. Where the court once acquires full jurisdiction, in a regular manner, during the lifetime of both parties, the death of the defendant after trial, but before judgment, will not abate the suit and render judgment against him void. At most it is but an irregularity.
    2. Death of party to a decree for divorce — as affecting the right of appeal by the survivor. The party against whom a decree of divorce has been rendered has the right to have the same reversed for error, and this right is not defeated by the death of the other party pending the appeal or writ of error. The divorced wife may, after her husband’s death, prosecute a writ of error to reverse the decree, and thereby be restored to all her rights as widow in the estate of her deceased husband.
    3. Entering judgment as of the trial term, at a subsequent term — • inten-vening death of one of the parlies. Where a trial or hearing of a cause has been regularly had, and judgment is delayed by motion for new trial, or by the court taking the case under advisement, and one of the parties dies before the announcement of judgment, the court may direct the same to be entered as of the preceding term at which the trial was had. Its entry at the subsequent term is but an irregularity, and the judgment will not be void.

      i. Same — amendment of record in that regard. On appeal from a decree of divorce, and a refusal to open the decree and allow a defence, both parties, at the September term, 1882, submitted the cause to this court. The appellee died before the next term, at which time the opinion of the court was filed and judgment of reversal entered. The attention of the court was not called to the fact of the death of the appellee. At the September term, 1883, this court, on appellant’s motion, amended the record of the judgment so as to make it appear as of the September term, 1882.
    Motion in this court to amend the record so as to give effect to the judgment as of a prior term.
    On the 15th day of July, 1881, George W. Danforth filed his hill in the circuit court of Iroquois county, against Anna Danforth,' his wife, to obtain a divorce, on the ground of extreme and repeated cruelty. Upon an ex parte hearing, the. circuit court found the defendant guilty of the charges in the bill, and decreed a divorce; and it appearing that the parties had agreed upon the amount the defendant was to receive in lieu of alimony, dower, and all other right, claim and intSest which she then had or might have in, to and upon the complainant’s estate, the court decreed her the sum so agreed upon. At a subsequent day of the same term the defendant entered her motion to set aside the decree, and that she be let in to defend the suit, for the reason the decree had been obtained by fraud, in which she had not participated. This motion the circuit court overruled, and the defendant appealed to the Appellate Court for the Second District. The Appellate Court affirmed the order and decree of the circuit court, and from that judgment of affirmance the defendant appealed to this court. After the argument and submission of the cause at the September term, 1882, on or about the 18th day of October, 1882, the said George W. Danforth departed this life intestate, leaving no relatives or heirs in this State, except Asa H. Danforth, a brother, and the appellant. No opinion was filed in the cause until March 28, 1883, when one was filed, and judgment was then entered reversing the decree of the Appellate Court. At the September term, 1883, being the next term after the opinion was filed, the appellant appeared and made her motion in this court to enter the judgment of March 28, 1883, as of the date said cause was taken under advisement by this court. Notice of the motion was given to all parties in interest, who appeared by counsel and resisted the motion.
    Messrs. Doyle & Morris, for the appellant:
    Where one of the defendants dies after argument and before judgment, the decree will be entered so as to have relation back as of the day of the final hearing. Campbell v. Meshin, 4 Johns. Ch. 334; Benson v. Wolverton, 1 C. E. Green, 110; Durham, v. Dolling, id. 310; Bank v. Weisinger, 2 Pet. 481.

      The rule of law is the same where all the parties die, either plaintiff or defendant. Vroon v. Ditmas, 5 Paige, 528; Wood v. Keys, 6 id. 478; Emery v. Parrott, 107 Mass. 104. But an order of court is necessary. Durham v. Dolling, 1 C. E. Green, 310 ; Ruckman v. Decker, 12 id. 244.
    Courts have allowed the application to be made by a third person, and the decree entered nunc pro tunc. Stoney v. Saunders, 1 H. & J. 341.
    A decree nunc pro tunc is always admissible where a decree was ordered or intended to be entered, and it was omitted to be done only by inadvertence of the court. Gray v. Brignardello, 1 Wall. 627.
    Where a judgment has been erroneously entered, the court may, at a subsequent term, from its minutes or other sufficient evidence, enter a nunc pro tunc order making the correction; and an affidavit setting up the facts which are uncontradicted, will be sufficient. People ex rel. v. Quick, 92 Ill. 580.
    Where one of the parties dies after the submission of the cause, the court protects the party bringing the suit, from any prejudice he might suffer by the death of his adversary after the suit was submitted; and instead of permitting the action to abate, will direct the judgment to be given effect, if necessary, as far back as the day of the submission. (Freeman on Judgments, 57, 58.) Now, this is exactly in point, and all that is asked in the case at bar.
    If jurisdiction is obtained by the court in lifetime, a judgment rendered after death is not void. Freeman on Judgments, sec. 140.
    Mr. J. W. Dougherty, for the administrator and heirs of George W. Danforth, contended that the appeal was only from the order of the circuit court refusing to set aside the decree of divorce, — not from the decree of divorce. That remains unquestioned, by appeal or otherwise.

      The death of the appellee effectually put a stop to all further proceedings in the case, and the judgment rendered in this court is a nullity. Life Association of America v. Fassett, 102 Ill. 315.
    There can be no right of action or defence surviving to the heirs or next of kin, in cases of divorce. The object of the suit is to dissolve the marital relation, and that having been ended by death, the suit then pending can not be revived. What can be gained by the entry of the proposed order? Appellant can not be restored to the condition of a feme covert, for the marital relation has been severed by death; nor can her property rights be affected, for the succession of the estate passed, at the time of appellee’s death, to parties not now in court, and their interests can not be affected by a nunc pro tunc order of reversal. Freeman on Judgments, see. 66; McCormick v. Wheeler, 36 Ill. 114.
    If, as in Smith v. Brittenham, 88 Ill. 291, 94 id. 624, 93 id. 188, Chicago v. Hall, 103 id. 342, and Thrifts v. Fritz, 101 id. 457, only that part of the record is brought up by appeal which appertains to the motion to let appellant in to defend, then this court has no jurisdiction to reverse the principal decree, and it, notwithstanding an abatement or reversal of the order appealed from, will still stand in full force.
   Mr. Justice Dickey

delivered the opinion of the Court:

This cause was, at the September term, 1882, properly submitted to this court by the parties, for its final judgment, upon the merits. Both parties then being in life, this court thereby acquired complete jurisdiction over the'parties and of the subject matter of the controversy, which was not divested by the subsequent death of the appellee. No question is made but that a judgment of this court, if made at that term, would have been valid and conclusive upon the parties properly before it. Formerly, the judgments of this court were announced and entered of record only in term time, and usually at the term at which the causes were submitted, and opinions were afterwards prepared and filed. This practice was changed many years ago, and to avoid delays as far as practicable, a statute was passed authorizing the rendering and entering of judgments and orders in vacation in all cases which had been taken by the court under advisement.

The first question presented relates to the validity of the judgment of this court, as it now stands. Is it void for want of jurisdiction, or is it binding upon those succeeding to the estate of the appellee ? Where the sole defendant is dead when the suit or writ of error is brought, it may be true that a judgment against the deceased defendant is a nullity, for the reason that the court never acquired jurisdiction of the cause. In such a case the court never acquires any authority to act or take any step. But that is not the case here. Here, the court, before taking any steps, was clothed, by the act of the parties and the law, with full jurisdiction and rightful authority to render the judgment it did. Did the death of the appellee, — not brought to the notice of the court by plea, suggestion, or otherwise, — deprive it of such jurisdiction lawfully acquired? We think not.

In Reid v. Holmes, 127 Mass. 326, the court say: “If the fact agreed, in the case stated, of the death of the defendant after the default and before judgment, is competent to be considered, it does not show that the judgment is absolutely void. The court, at the time of the bringing of the former action, had jurisdiction of the subject matter and of the parties, and might, after the death of the defendant, have rendered judgment against him as of a previous term. (Kelley v. Riley, 106 Mass. 339, 341; Tapley v. Martin, 116 id. 275; Tapley v. Goodsell, 122 id. 176, 181.) Or the judgment actually entered might, on motion of the plaintiff, have been amended so as to stand as a judgment nunc pro time, or have been vacated, and the administratrix summoned in to defend the action. ” The court further say, even if the judgment was erroneous, and might be reversed for irregularity, yet neither party could collaterally dispute its validity, — citing Hendrick v. Whittemore, 105 Mass. 23; Hendersons. Staniford, id. 504; Penhallow s. Doane, 3 Dall. 54; Warder s. Tainter, 4 Watts, 270; Yaple s. Titus, 4 Pa. St. 195; Evans s. Spurgin, 6 Gratt. 107. The court further say: “In a similar case, Chief Justice Tindall said, that while the judgment was suffered to exist on the rolls of the court without any application to set it aside, it could only be treated as a valid judgment; and that if any application were made, it should have been to the court in which the judgment was rendered, which had power to amend the proceedings, in order to obviate the alleged irregularity. Bridges v. Smyth, 1 Mo. & Sc. 93, 99; S. C. 8 Bing. 29, 32.” The death of a party in a chancery case does not, ipso facto, abate the suit without any order of the court. Cook’s Exr. v. Turpin, 10 B. Mon. 245.

In Spaulding, Admr. s. Wathen, 7 Bush, (Ky.) 662, an appeal was prosecuted to the Court of Appeals after the death of the appellant, without knowledge of his death,, and the judgment below reversed, and the court held that its judgment of reversal was .not void, but binding, and say: “The death of John after judgment in the circuit court, and before the appeal was prosecuted, did not take away from this court the right to entertain it. Regularly, a personal representative should have been appointed, and the appeal prosecuted in his name; but we are not prepared to say the want of a personal representative renders void the appeal, and all proceedings had under the same. * * * Where a plaintiff dies pending his suit, his death may be pleaded in abatement, but the defendant may waive such plea, and permit the cause to be tried upon its merits, without revivor. The Supreme Court of Illinois held in the ease of Camden et al. v. Robertson, 2 Scam. 508, that the death of one of the plaintiffs before the commencement of the suit was no bar to the action, and could only be made available to the defendant by a plea in abatement setting up such fact; and in Case v. Ribelin, 1 J. J. Marsh. 30, in which the plaintiff in the circuit court died before judgment, this court held that the judgment was not void, and that it could only be corrected by the court in which it was rendered. ”

Freeman, in section 140 of his work on Judgments, says: “If jurisdiction be obtained over the defendant in his lifetime, a judgment rendered against him subsequently to his death is not void, ” — citing in support of the text, Collins v. Mitchell, 5 Fla. 364; Loring v. Folger, 7 Gray, 505 ; Coleman v. McAnulty, 16 Mo. 173; Yaple v. Titus, 44 Pa. St. 203; Day v. Hamburg, 1 Browne, 75; Gregory v. Haynes, 21 Cal. 443. Again, in section 153, he says: “Even in such cases the judgment is simply erroneous, but not void. This is because the court, having obtained jurisdiction over the party in his lifetime, is thereby empowered to proceed with the action to final judgment; and while the court ought to cease to exercise its jurisdiction over a party when he dies, its failure to do so is an error to be corrected on appeal, if the fact of the death appears upon the face of the record, or by writ of error coram nobis, if the fact must be shown aliunde.”

In Stoetzell et al. v. Fullerton, 44 Ill. 108, the court, in speaking of the rule that the death of a party abatesThe suit, said: “This rule is not universal at common law, as appears from the case cited by appellee’s counsel, (Underhill v. Devereux, 2 Saund. 72, note i,) as in a quare impedit by two, or in an audita querela by two, or in debt by two executors, when one was summoned and severed, and dies, the writ did not abate; and when one of two plaintiffs died before interlocutory judgment, but the suit went on to execution in the names of both, the plaintiff was permitted, even after a motion to set aside the proceeding for irregularity, to suggest the death of the other on the roll, and to amend the ca. sa., without paying costs. (Neionham v. Law, 5 Term Rep. 577.) The statute of 8 and 9 William III, chap. 11, as well as our own, was designed to prevent the abatement of any case where the "cause of action would survive on the suggestion of the death, which suggestion is a matter, of form, and íngy he made by either party. The cases cited show that it has been often allowed to make the suggestion nunc pro tunc, and it should be allowed in furtherance of justice, and in support of the right. Newnham v. Law, supra; Hamilton v. Holcomb, 1 Johns. Cas. 29.”

But it is urged, that conceding the foregoing to be good law, it has no application to a suit for a divorce. It is claimed that the death of either party puts an end to all further legal proceedings. This is true where the death takes •place before any final decree of divorce. (Ewald v. Corbett, 32 Cal. 493; Swan v. Harrison, 2 Coldw. 534; Pearson v. Carrington, 32 Ala. 227.) But where a decree of divorce has been improperly obtained, and the proceedings are erroneous, the party whose property rights have been injuriously affected •by such decree ought not to he concluded by reason of the subsequent death of the other party. While both parties live, a writ of error lies to reverse an erroneous decree of divorce, the effect of which is to restore both parties to their former status of husband and wife, in law, and after the death of one it ought to lie in favor of the other party, not for the same purpose, but to restore the survivor to his or her rights .of property divested erroneously by the decree. On the reversal of a decree of divorce, the parties will be placed in the position they occupied before the decree was entered, and if one of them has died between the date of the decree of divorce and its reversal, the survivor procuring the reversal will be entitled to all rights of succession or dower, and the like, in -the estate of the other, the same as if no divorce had ever been had; but in such case the court need not ordinarily remand the case, as no other decree of divorce can ever be had.

This court has decided that a divorced wife, after the death of her husband, may prosecute a writ of error to reverse the decree of divorce, - and thereby be restored to all her rights as widow in the estate of -her deceased husband. (Wren v. Moss et al. 2 Gilm. 72.) In that case this court say: “The plaintiff in error complains that she has been injured by an erroneous decree. If so, she ought to find a remedy by writ of error, for although by the death of the complainant the parties were divorced, and no further proceedings could be had, yet'the mode of effecting the same object by a decree will, if erroneous, unjustly deprive the plaintiff in error of all right in dower or interest in the -personalty. It is plain, therefore, that she-may be greatly aggrieved by the decree, if erroneous. If aggrieved, she ought to- find a remedy by appeal or writ of error.” The writ of error in that case was so framed as to bring before the court all persons whose interests might be affected, as has been done here,-by notice.

If, then, the appellant could have prosecuted her appeal or writ of error to reverse the decree of divorce even after her husband’s death, and thus remove the bar of that decree to the assertion of her property rights as widow of the deceased, no reason is seen why she may not do the same thing where her husband dies after the appeal is taken or writ, of error brought, and after the cause is submitted. The most that can be said of the entry of final judgment after the death of the appellee is, that it was irregular and informal. No valid objection can be urged to its substantial justice. If the procedure was informal, it seems no objection was taken to the same by either party, and the attention of this court was not called to the fact of appellee’s death. Until objection was made to the judgment, appellant might have remained passive; but we see no good reason why the informality may not. be corrected in the mode suggested by the appellant, — by directing the amendment of the record so as to show the entry of the judgment of a date prior to appellee’s death. This we clearly have the power to do in furtherance of justice.

In Wood v. Keyes et al. 6 Paige, 478, the court said: “It being understood by the court that the complainant’s cestui que trust has died since the hearing of this cause, the decree must be entered as of the 20th of April, 1836; and in case the trust is at an end, the suit must be properly revived in the name of the person who has succeeded to the complainant’s rights, if further proceedings in the cause shall be found necessary. ” In Perry v. Wilson, 7 Mass. 393, it was held that where an action is delayed for the convenience of the court, they will take care that no body suffers by such delay. Therefore, when, after a continuance, by order of court, for advisement, the defendant in the action died, judgment was entered as of the former term.

Where an action on a statute was tried before its repeal took effect, and a verdict rendered for the plaintiff, and questions of law were reserved, which, after the repeal took effect, were decided in favor of the plaintiff, the court ordered judgment to be entered on the verdict as of a day previous to the going into operation of the repealing act. Springfield v. Worcester, 2 Cush. 52, — citing Bingham on Judgments, 95, 96; Key v. Goodwin, 1 Moore & Scott, 620; Ryghtmire v. Durham, 12 Wend. 245; Perry v. Wilson, 7 Mass. 395.

Where a plaintiff was non-suited at the trial, and who applied for a new trial, died while the cause was sub judice, and a new trial was eventually denied, the defendant was permitted to enter judgment as of the term succeeding the non-suit, the plaintiff then being in full life. Spalding v. Congdon, 18 Wend. 543. To the same effect, see Currier v. Lowell, 16 Pick. 170; Tooker v. Duke of Beaufort, 1 Burr. 147; Oades v. Woodward, 1 Salk. 87; Tidd’s Practice, (1st Am. ed.) 846; Tapley v. Martin, 116 Mass. 275; Mead v. Mead, 1 Mo. App. 247; Webber v. Webber, 83 N. C. 280; Boyd v. Boyd, 38 Pa. St. 241; Jennings v. Ashley, 5 Pike, 128; Pool v. Loomis, id. 110; Davies v. Davies, 9 Ves. Jr. 461; Hess v. Cole, 3 Zabr. 116.

But it is urged that the judgment of this court in reversing the judgment of the Appellate Court can have no effect to restore appellant to her rights as widow of her deceased husband. It is claimed there were entered two distinct and separate decrees in the circuit court, — the one for the divorce, and the last refusing to set aside the decree of divorce and allow the appellant to defend, — and that she appealed only from the latter,-and not from the decree of divorce, and therefore the appellate court can reverse only the order denying her an opportunity to defend, leaving the decree of divorce in full force. This court decided that the circuit court erred in refusing to set aside the decree of divorce, and upon that ground reversed the judgment of the Appellate Court, and remanded the cause. This is equivalent to remanding with directions to reverse the order of the circuit court overruling the motion to vacate the decree, and to remand the case to the circuit court, with directions to the circuit court to allow the motion and vacate the decree.

The motion to amend the record in this court will be allowed, and the record of the judgment amended so as to make it appear as of the September term, 1882. When the case comes before the Appellate Court' under this record as amended, formal regularity will require the death of appellee to be suggested, and that his legal representatives be made parties thereto.

Motion allowed.


author: Mr. Justice Mulkey

text:
    M. Steib, for use, etc. v. William H. Whitehead.

      Filed at Springfield September 27, 1884.

    1. Garnishment — trust fund — whether subject to'garnishment. A testator devised his estate to trustees, to be well rented, and kept in repair and taxes paid, and to be insured against fire, and the trustees to pay over all remaining rents and income in cash, into the hands of his daughter, “in person, and not upon any written or verbal order, nor upon any assignment or transfer by” the daughter: Held, that the net income of the estate devised was not liable to garnishment in the hands of the trustees for debts of the beneficiar y.
    2. Wllili — devise in trust — provisions for protection of beneficiary, as against debts, improvidence, etc. While it is true that an absolute gift of property can not be rendered inoperative by conditions annexed, it does not follow that a parent may not, by will or otherwise, make such a reasonable disposition, of his property, when not indebted, as will effectually secure his child a competent support for life; and the most appropriate, if not the only, way of accomplishing this object, is through the medium of a trust.
    3. In this case, a testator devised all his lands to trustees, in trust for his daughter, declaring it to be the duty of the trustees to keep such" lands, etc., well rented, to make reasonable repairs on the same, to pay promptly all taxes and assessments thereon, to keep the buildings thereon reasonably insured against damage by fire, and to pay over all remaining rents and income in cash, into the hands of his said daughter, in person, and not upon any 'written or verbal order, nor upon any assignment or transfer by the said daughter, the trust to cease at her death, and the estate to vest in her heirs, etc.: Held, that the intention was to place the net income of the property beyond the control of the daughter and her creditors while in the hands of the trustees, and that such intention should be enforced by the courts.
    Writ of Error to the Appellate Court for the Third District ; — heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.
    Mr. Thomas F. Tipton, for the plaintiff in error •„
    The fund arising from the rents and profits of the lands and property in question, and sought to be reached in this proceeding, is absolute in the beneficiary, and assignable, and being the property of Mrs. Schonrock, absolutely, is liable to garnishment. Wells v. Ely, 3 Stockt. 175; Lynch v. Utica Ins. Co. 18 Wend. 245; Gleason v. Fayerweather, 4 Gray, 348; Hallett v. Thompson, 5 Paige, 583; Livingston v. Stickles, 8 id. 398; Van Renssalear v. Hays, 19 N. Y. 68; Newkirk v. Newkirk, 2 Caines, 335; McWilliams v. Risley, 2 S. & R. 507; Walker v. Vincent, 19 Pa. 369; Hanly v. Northampton, 8 Mass. 3; Schermerhorn v. Negus, 1 Den. 448 ; 2 Redfield on Wills, see. 288, note 30; Rockford v. Hackman, 9 Hare, 475; Keyser’s Appeal, 57 Pa. St. 236; Koenig’s Appeal, id. 352; Wilkinson v. Wilkinson, 3 Swanst. 528; Groves v. Dolphin, 1 Sim. 66; 2 Jarman on Wills, (Bigelow’s ed.) 24-29, note 2.
    That trusts can not be created with a provision that the equitable estate or interest of the cestui qne trust can not be alienated, is the well settled law of England and most of the States in this country. Oxley v. Lane, 35 N. Y. 345; Norris v. Beyea, 3 Kern. 273; Reifsnyder v. Hunter, 19 Pa. St. 41; Walker v. Vincent, id. 369 ; Yard’s Appeal, 64 id. 95 ; Harken’s Appeal, 60 id. 257; Gleason v. Fayerweather, 4 Gray, 348; Bank v. Davis, 21 Pick. 42; Lane v. Lane, 8 Allen, 350; Jones v. Bacon, 68 Maine, 34; Norris v. Hensley, 27 Cal. 439; Pace v. Pace, 73 N. C. 119; Mandelbaum v. McDonnell, 29 Mich. 78; 2 Perry on Trusts, sec. 386; Story’s Eq. Jur. sec. 974 a.
    The rule is, that where a grant or devise is made of the rents, issues and profits of an estate, the legal estate being vested in a trustee, with a condition annexed that they shall not be subject to present or future debts, whether the estate granted or devised be an estate for life or in fee, the condition is void, as against public policy. Graves v. Dolphin, 1 Sim. 66; Snowden v. Dales, 6 id. 524; Mebane v. Mebane, 4 Ired. Eq. 181; Bank v. Forney, 2 id. 181; Foley v. Bunnell, 1 Brown’s Ch. 247; Brandon v. Robinson, 18 Ves. Jr. 429; Piercy v. Roberts, 1 M. & K. 4; Dick v. Pitchford, 1 Dev. & Bat. Eq. 484; 2 Story’s Eq. sec. 974 a.

      The limitation that the trustee is not to pay upon orders or assignment, is void, and the income is subject to the payment of the debts of the cestui que trust. Smith v. Moore, 36 Ala. 327; Mebane v. Mebane, 4 Ired. Eq. 131; Gray v. Obear, 54 Ga. 231; McIlvain v. Smith, 42 Mo. 45.
    The rule, is, that where the debtor is entitled to the sole enjoyment of the income or profits of a fund during his lifetime, such income is subject to the payment of his debts. Dick v. Pitchford, 1 Dev. & Bat. Eq. 480; Presley v. Rodgers, 24 Miss. 520; Johnson v. Cushing, 15 N. H. 298; Brown v. Cleary, 1 Rich. Eq. 319; McIlvain v. Smith, 42 Mo. 45; Heath v. Bishop, 4 Rich. Eq. 46.
    Unless otherwise specified in the trust, , the profits or income accumulating on a fund given to the beneficiary for life, belong to her, and are not to be added to the corpus of the fund, (Astope v. Goodall, 53 Ga. 318, Bazamore v. Davis, 55 id. 504,) and such surplus is liable for her debts. Bailie v. McPhorter, 56 Ga. 183; Rippon v. Norton, 2 Beav. 63; Page v. Way 3 id. 20; Wiles v. White, 10 Rich. Eq. 294; Joor v. Hodges, Speer’s Eq. 593.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Asahel Gridley, by his last will and testament, devised to trustees certain valuable real estate, upon the following trusts, namely: “To kee}! said lands and tenements well rented; to make reasonable repairs upon the same; to pay promptly all taxes and assessments thereon; to keep the buildings thereon reasonably insured against damages by fire; to pay over all remaining rents and income in cash, into the hands of my said daughter, Juliet, in person, and not upon any written or verbal order, nor upon any assignment or transfer by the said Juliet. At the death of the said Juliet said trust estate shall cease and be determined, and the said lands shall vest in the heirs of the body pf the said Juliet, and in default of such heirs, shall descend to the heirs of my body then living, according to the laws of Illinois then in force regulating descents.” After the death of Gridley his will was duly probated, and no question is made as to its form, or, the capacity of the testator to make a will. The trustees named in the will having refused to act, by a proper proceeding in chancery William H. Whitehead, the defendant in error, was duly appointed trustee in their stead, and thereupon took possession of the devised' premises, and otherwise assumed the duties of the trust. Certain moneys, being a part of the rents and profits of the estate, having come into his hands, as trustee, and which, under the provisions of the will, it was his duty to pay over to Juliet, the daughter, were attached in his hands by one of her creditors. The trustee appeared and filed an answer, as garnishee, setting up the trust and the special provisions of the will above cited, and the question presented for determination is, whether the money thus held by him was subject to garnishment.

The authorities are not in accord on this subject. Under the rule as laid down by the courts of England, and by the courts of final resort in a number of the States of the Union, the fund attached would clearly be subject, in equity, to the payment of the daughter’s debts. (Tillinghast v. Bradford, 5 R. I. 205 ; Smith v. Moore, 37 Ala. 330; Heath v. Bishop, 4 Rich. Eq. 46; McIlvain v. Smith, 42 Mo. 45.) A contrary rule prevails in Pennsylvania, Massachusetts, and perhaps other States, which seems to be supported by the reasoning of the Supreme Court of the United States in Nichols v. Eaton, 91 U. S. 716. The question, so far as we are advised, is a new one in this court, and in view of the respectable authority to be found on either side of it,- we feel at liberty to adopt that view which is nearest in accord with our convictions of right and a sound public policy.

That it was the intention of the testator to place the net income of the property beyond the control of his daughter and her creditors while in the hands of the trustee, is manifest, and we perceive no good reason, nor has any been suggested, why this intention should not be given effect. We fully recognize the general proposition that one can not make an absolute .gift or other disposition of property, particularly an estate in fee, and yet at the same time impose such restrictions and limitations upon its use and enjoyment as to defeat the object of the gift itself, for that would be, in effect, to give and not to give, in the same breath. Nor do we at all question the general principle that upon the absolute transfer of an estate, the grantor can not, by any restrictions or limitations contained in the instrument of transfer, defeat or annul the legal consequences which the law annexes to the estate thus transferred. If, for instance, upon the transfer of an estate in fee, the conveyance should provide that the estate thereby conveyed should not be subject to dower or to curtesy, or that it should not descend to the heirs general of the grantee upon his dying intestate, or that the grantee should have no power of disposition over it, the provision, in either of these cases, would clearly be inoperative and void, because the act or thing forbidden is a right or incident which the law annexes to every estate in fee simple, and to give effect to such provisions would be simply permitting individuals to abrogate and annul the law of the State by mere private contract. This can not be done. But while this unquestionably is true, it does not necessarily follow that a father may not, by will or otherwise, make such reasonable disposition of his property, when not required to meet any duty or obligation of his own, as will effectually secure to his child a competent support for life, and the most appropriate, if not the only, way of accomplishing such an object is through the medium of a trust. Tet a trust, however carefully guarded otherwise, would in many cases fall far short of the object of its creation, if the father, in such case, has no power to provide against the schemes of designing persons, as well as the improvidence Of the child itself. If the beneficiary may anticipate the income, or absolutely sell or otherwise dispose of the equitable interest, it is evident the whole object of the settlor is liable to be defeated. If, on the other hand, the author of the trust may say, as ivas done in this case, the net accumulations of the fund shall be paid only into the hands of the beneficiary, then it is clear the object of the trust can never be wholly defeated. Whatever the reverses of fortune may be, the child is provided for, and is effectually placed beyond the reach of unprincipled schemers and sharpers.

The tendency of present legislation is to soften and ameliorate, as far as practicable, the hardships and privations that follow in the wake of poverty and financial disaster. The courts of the country, in the same liberal spirit, have almost uniformly given full effect to such legislation. The-practical results of this tendency, we think, upon the whole, have been beneficial, and we are not inclined to render a decision in this case which may be regarded as a retrograde movement. The creditors of the daughter have no ground to complain that they have been misled or wronged in consequence of the provision made for her by her father. It was his own bounty, and so far as they are concerned he had the right to dispose of it as he pleased. The property was not placed in her possession so that she might appear as owner when she was not, and thereby obtain credit. An examination of the public records would have shown that she had- no power to sell or assign her. equitable interest, — that the extent of her right was to receive the net accumulations of the trust estate from the hands of the trustee, and that these accumulations did not become absolutely hers, so as to render them subject to legal process for her debts, until actually paid to her.

The McLean circuit court, and the Appellate Court for the Third District, having reached a conclusion in accord with the views here presented, the judgment will be affirmed.

Judgment affirmed.


author: Mr. Chibe Justice Scholeield

text:
    George B. Graham v. The People ex rel. Mary Rutledge.

      Filed at Springfield October 2, 1884.

    1. County judge — when his duty to certify case to circuit court. Where a county judge is interested, as an attorney for heirs of an intestate, in resisting the widow’s award, he is incompetent to act as judge upon the question of allowing the sum awarded her by the appraisers, and it is made his duty by the statute to certify the question to the circuit court, for its action in the premises.
    2. Same — mandamus to compel him to certify question to circuit court. Where a county judge is interested in an estate of a deceased person, he has no discretion to exercise as to whether he will transfer the matter in dispute to the circuit court for adjudication, and his power is limited to’the simple ministerial duty to cause the record and papers to be certified to that court in conformity with the statute, and mandamus lies to compel him to do so if he refuses.
    3. Same — interchange of judges — statute construed. The provision of section 1 of the act approved May 31, 1878, for the interchange of county judges of different counties, makes such interchange purely voluntary, and it may be made without any reference to the fact of the interest of the judge whose place is to be taken by the other judge. Such provision does not repeal or modify section 69 of chapter 3, and sections 179 and 180 of chapter 37, of the Revised Statutes.
    4. Where a county judge was interested, as an attorney, only in a single question arising on exception to the estimate of the widow’s award, it is made his duty by the statute to certify to the circuit court only the question in which he has such interest. In other respects the settlement of the estate may proceed before him.
    5. Costs — Supreme Court — reversal in part. Where this court affirmed in part a judgment in a mandamus suit, and reversed the same in part, this court directed that each party pay the costs of this court incurred by him.
    Appeal from the Appellate Court for the Third District; — . heard in that court on writ of error to the Circuit Court of DeWitt county; the Hon. Lyman Lacey, Judge, presiding.

      Mr. Y. Wabneb, for the appellant:
    The respondent, before his election, was retained by all the heirs except one, to resist the approval, by the county court, of the inventory and report of the appraisers, including the estimate of the widow’s award. He was disqualified from presiding at the hearing of matters wherein he was of counsel, but no further.
    Section 69 of chapter 3, and sections 179 and 180, of chapter 37, of the Eevised Statutes, provide for certifying to the circuit court where the county judge is interested or is a material witness; but the act of May 29, 1879, authorizes county judges to interchange and hold courts for each other, and this obviates the necessity of certifying to the circuit court, or at least makes it discretionary with the county judge. If he must certify when interested, no necessity could ever arise for an interchange of county judges.
    The jurisdiction' of the county court, rightfully acquired, will not be disturbed unless it is clear, in law and in fact, that it has been lost. 5 Wait’s Actions and Defences, 253, sec. 5; Worthington v. Jeffries, L. R. 10 C. P. 377; 12 Eng. 440.
    “Shall” means “may” when no right or benefit to any one depends upon the imperative use of the word. Fowler v. Pirkins, 77 Ill. 271; Wheeler v. Chicago, 24 id. 105.
    The writ of mandamus ought not to issue in any case unless ■the party applying for it shall show a clear legal right to have the thing sought by it done, and in the manner and by the person or body sought to be coerced, and must be effectual as a remedy, if enforced, and it must be in the power of the party, and his duty, also, to do the act sought to be done. It is well settled that in a doubtful case the writ should not be awarded. It is never awarded unless the right of the relator is clear and undeniable, and the party sought to be coerced is bound to act. People v. Hatch, 33 Ill. 140.; People
      v. Commissioners, 66 id. 339; People v. Besse, 93 id. 180; People v. St. Clair County, 85 id. 396; People v. Railroad Co. 55 id. 96; Railway Co. v. County Clerk, 74 id. 27.
    Messrs. Fuller & Monson, for the appellee;
    As to the interest disqualifying a judge from acting, see Cooley’s Const. Lim. 514, .516.
    If the judge who renders judgment in a case has previously been attorney in the case, the judgment is a nullity. Kearns v. Kearns, 5 Coldw. 217.
    Section 69 of chapter 3, and sections 179 and 180 of chapter 37, of the Revised .Statutes, we think are mandatory, leaving no discretion in the judge, and gives the circuit court of the proper county full an'd complete jurisdiction in all matters of probate pending in the county court, wherein the judge is interested.
    The act of May 29, 1879, giving a right of interchange, does not repeal or in any manner modify the sections above referred to. Note the language, “perform each other’s duties. ” This does not enable a judge having no jurisdiction, to confer jurisdiction on another, and enable him to do what he could not do himself.
    When a right to a change of venue is given by statute, the courts "have no power to repeal, modify or mitigate the requirements of such statute. Knickerbocker Ins. Co. v. Tolman, 80 Ill. 106; Johnsons. Von Kettler, 66 id. 63; Lowry v. Coster, 91 id. 182; Weyrich v. People, 89 id. 95.
    , The statute allowing county judges to interchange with each other has nothing to do with a ease where the judge is interested.
    Where a duty is imposed by statute on a judge to do a specific act, mandamus will lie. People ex rel. v. Power, 25 Ill. 187; People ex rel. v. Zane, 105 id. 662; People v. Williams, 91 id. 87; People v. Village of Crotty, 93 id. 180.
   Mr. Chibe Justice Scholeield

delivered the opinion of the Court:

The relatrix, as administratrix of the estate of her deceased husband, returned into the office of the county clerk an inventory, appraisement bill, and estimate by the appraisers of the . value of the widow’s award. The respondent, as attorney at law for all but one of the heirs at law, resisted the approval of these papers, and filed exceptions, in writing, thereto, and the county court, at its November term, 1882, entered an order approving the inventory and appraisement bill, but disapproving and setting aside the widow’s award. At the November election, 1882, the respondent was elected county judge, and in due time qualified, and was commissioned as such. Subsequently, and after the respondent was so qualified and commissioned as county judge, the relatrix filed in the office of the county clerk an. additional inventory and a second estimate by the appraisers, of the value of the widow’s award. The respondent, as such attorney for the heirs at law, then also resisted the approval of the appraisement of the widow’s award, and filed exceptions, -in writing, thereto, and thereupon the relatrix made a written request and demand upon the respondent, that he, as county judge, enter upon the records of- the county court an order reciting that he was interested, as an attorney, in the settlement of the estate, and that therefore the same should be certified to the circuit court of that county for settlement; but he refused to make such order, and instead, and of his own motion, ordered that the venue be changed, “for the hearing of exceptions to inventory and appraisers’ estimate of widow’s award, ” to another qounty judge, named to preside in that court, .by. the request of the respondent. The principal question to be determined is, whether this action of 'the respondent has any authority of law to sanction it.

It is provided by section 69, chapter 3, of the Revised Statutes of 1874, entitled “Administration of estates,” that “in all cases or matters pending in the county court, where the judge of that court shall be interested in the same, or is a material and necessary witness, the case shall be transmitted to the circuit court of the proper county, and there determined, as in the county court; and the papers, with the order or judgment of the circuit court thereon, shall be duly certified, and filed in the county court, and have the same effect ás if determined in the county court.” And sections 179 and 180, of chapter 37, of the same statute, entitled' “Courts,” are as follows:

“Sec. 179. Whenever the county, judge of any county is interested in the estate of any deceased person, and the letters testamentary or of administration shall be grantable in the county of such judge, such facts shall be entered upon the records of such court, and certified to the circuit court of such county: Provided, that in ease the judge is interested only as a creditor, no change need be made except in relation to his claim.
“Sec. 180. Upon filing the copy of such certificate with the clerk of the circuit court, such court shall have full and complete jurisdiction in all matters pertaining to such estate, and may make all orders and take all proceedings therein which might have been made or taken in the county court if the judge thereof had not been interested.”

These sections assume, rather than declare, the incompetency of the county judge to act in the contemplated states of case. At common law, no one can be a judge in his own cause. (Coke upon Littleton, sec. 313; Broom’s Legal Maxims, (4th ed.) 109; Cooley’s Const. Lim. 410, et seq.) The principle extends to the interest of an attorney at law in the suit of his client, and so here is provided a way by which, in the contingency contemplated, the case or proceeding shall be taken before a tribunal competent to adjudicate upon it.

But counsel contend’ that section 1 of an act approved May 31, 1879, renders it unnecessary, in cases like the present, to certify the papers in the estate, or relating to the question in controversy, to the circuit court, and authorizes the precise thing which he did. That section reads: “That the county judges of the several counties of this State, with like privileges as the judges of the circuit courts of this State, may interchange duties when they find it necessary or convenient.” This, it will be observed, is purely voluntary, and the interchange may be made without any reference whatever to the interest, or want of interest, of the judge whose place is thus filled by another judge, in the cases or questions to be decided. Of course, if, before any necessity or opportunity for action by the court, here, on the questions in reference to which respondent was counsel, another judge, lawfully empowered to act, was present and presiding as judge, the case contemplated in section 179, of chapter 37, and section 69, of chapter 3, of the Revised Statutes of 1874, would have had no existence, for so long as such-judge should be present and presiding in-the court, he would-be competent.to decide the questions in which the judge of that court was interested. But that question is not before us. Here the judge who was interested as attorney was present and presiding. He was incompetent to act as judge upon the question in which he was interested as' an attorney, and, under the statute, it was then his duty to certify the question to the circuit court. He was not authorized to wait and see whether he could get some other county judge to sit in his place. It is to be observed the section last quoted does not assume to repeal or modify the sections first quoted, and in our opinion it does not do so by implication. They can all exist together, without any incompatibility.

A final objection urged by counsel for respondent is, that mandamus doe? not lie in this kind of a case, and The People ex rel. v. McRoberts, 100 Ill. 458, is referred to in support of the position. The cases are essentially different. There the judge had to exercise judgment and discretion. The right to the change depended upon the sufficiency of the petition, and of this the judge was to determine. But here the interest of the judge is a matter knowledge of which exists in his own breast, and it renders him absolutely incompetent to act,— goes to the jurisdiction of the court. There is nothing for him to exercise judgment upon. The fact existing, his power is limited to the simple ministerial duty of causing the record and papers to be certified, in conformity with the statúte. (Cooley’s Const. Lim. ubi supra.) We are, however, of opinion that only the questions in which the respondent is interested as counsel, should be certified. In all -other respects the settlement of the estate may proceed before him as well as another. An estate is not a single litigation. Its settlement may involve many distinct legal controversies, in some of which one attorney may be interested, and in others different attorneys, — and so far as is here perceived the interest of the respondent goes no further than the question of the widow’s award.

The judgment below will therefore, so far as respects the widow’s award, be affirmed, but so far as respects other matters relating to the settlement of the estate it will be reversed. The costs of each party in this court will be taxed against the party incurring them.

Judgment reversed in part and in part affirmed.


text:
    George W. Bittinger v. Fredericka Kasten et al.

      Filed at Ottawa September 27, 1884.

    1. Fraudulent conveyance — voluntary settlement on wife, by party not insolvent. To rendér a reasonable provision by a husband for his wife, by investing her with the title to real estate, fraudulent, as against a creditor of the former, it must appear that he was at the time insolvent, or that such gift made him so.
    2. The owner of property may at any time give the same to any one he chooses, so long as he thereby injures no then existing creditor, and no subsequent creditor can call it in question, unless the donor is guilty of an actual fraudulent intent, and such creditor is thereby injured. This follows from his absolute dominion over his property; and the mere fact that he may be indebted, is not alone sufficient to make a gift or voluntary conveyance by him inoperative. If there is no intention on his part to delay or defraud his creditors, the conveyance is not within the Statute of Frauds.
    3. No creditor without any lien has any right to complain that his debtor is giving away his property to his wife or children, unless such creditor can establish the fact that the debtor has not retained enough to satisfy existing debts. Such grantor must make himself insolvent by such gifts or conveyances, and to impeach them, fraud must be alleged and proved.
    4. So this court has held, that where there is no fraudulent intent, and the gift or provision made by a debtor to his wife or child is a reasonable one under the circumstances, leaving ample property, unincumbered, for the payment of his debts, not materially lessening his creditors’ then prospect of payment, the gift or provision will be sustained.
    5. Same — presumption as to insolvency. In the absence of an allegation in a creditor’s bill to reach property given by a husband to his wife, that he was insolvent at the time, or that such gift rendered him unable to meet all his legal obligations, or even that he owed any other persons, and of proof to sustain the same, it can not be presumed that any other debts of the husband then existed.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Coolc county; the Hon. George Gardner, Judge, presiding.

      This was a creditor’s bill, filed in the Superior Court of Cook county, on October 27, 1882, by George W. Bittinger, against Fredericka Basten, Carl Basten, Herman A. Haster, G. H. Thomas and Otto Wasmansdorff, to subject certain real estate vested in Fredericka Basten ‘to the payment of a judgment in favor of the complainant, against her husband, Carl Basten.
    In 1873 Carl Basten acquired the title to lot 42, in Reich’s re-subdivision of block 28, in canal trustees’ subdivision of part of section 33, township 40, north, range 14, east, and remained the owner of record until July 19, 1879, when he, and Fredericka, his wife, conveyed the same to William Zimmerman, for the expressed consideration of $4000. ,On the same day, Zimmerman conveyed the same lot to said Fredericka Basten, for the expressed consideration of $4000. These two conveyances are charged to have been fraudulent, and without consideration. Afterwards, on July 14,1881, said Fredericka Basten and her said husband sold said lot to Herman A. Haster for $4600, and on September 9, 1881, one G. H. Thomas conveyed to Fredericka Basten sub-lots 3 and 4, in G. H. Thomas’ subdivision of lot 14, in block 21, in canal trustees’ subdivision of section 33, etc., she using the means derived from the sale of lot 42 in making payment for these sub-lots. On April 25, 1879, complainant recovered a judgment against one Herman for $530.71, and costs, from which judgment said Herman took an appeal to the Appellate Court, and on April 26, 1879, said Herman filed his appeal bond, with the said Carl Basten as one of his sureties. At the October term, 1879, of the Appellate Court, said appeal was dismissed, whereby the liability of Carl Basten as a surety on said appeal bond became fixed. On August 7, 1882, the complainant, in an action on said bond in the Superior Court of Cook county, recovered judgment against-said Carl. Basten for $700.76, and costs of suit. An execution was issued upon this judgment, which was returned no property found. The bill alleges the insolvency of Carl Kasten, and charges that the conveyances by Kasten to Zimmerman, and by the latter to Mrs. Kasten, were without consideration, and for the fraudulent purpose of preventing the complainant from collecting his claim from Mr. Kasten on this bond, and prays that the sub-lots be declared to belong to the husband, and subject to the judgment.
    The answers of Fredericka Kasten and Carl Kasten are substantially alike. They admit that the title to the first lot stood in the husband at the time he signed the bond, and 'had been ih his name since 1873, and until he conveyed to Zimmerman. There is no pretence that there was any consideration for the conveyance from Carl Kasten to Zimmerman, or from the- latter to Mrs. Kasten; but it is claimed that the first lot was bought, in 1873, with the means of the wife, and that the husband had taken the title in his own name, without her consent; that she had repeatedly since asked her husband to reconvey said lot to her, but that he had neglected to do so, and that the conveyance by her husband to Zimmerman, and by Zimmerman to her, was simply to put the title in her.
    The cause was heard upon the bill, answers and replication, and the deposition of the complainant, and the court dismissed the bill, which decree was affirmed by the Appellate Court, and the complainant, by his further appeal, brings the case to this court.
    Mr. Joseph Peirshing, for the appellant:
    When a bill calls for an answer under oath, then the answer is evidence only so far as it is strictly responsive to the allegations of the bill. If the answer sets up new matter by way of confession and avoidance, it is incumbent on the defendant to prove it. Cummins v. Cummins, 15. Ill. 33; Stoufer v. Machen, 16 id. 554; Cassell v. Ross, 33 id. 254; O’Brien v. Fry, 82 id. 274; McDonald v. McDonald, 16 Vt. 634; Wake-

      man v. Grover, 4 Paige, 33; Hart v. Ten Eyck, 2 Johns. Ch. 89; Clark v. White, 12 Pet. 190.
    The wife, by allowing her husband to hold-property in his name for several years, thereby giving him credit, is estopped to show he held the same in trust for her. Bigelow on Estoppel, (1st ed.) 468; id. (2d ed.) 479, 482; McNiel v. Tenth National Bank, 46 N. Y. 325; Wendell v. Van Rennselaer, 1 Johns. Ch. 344; Storrs v. Barker, 6 id. 160.
    It makes no difference as to the character of the debt at the time of the fraudulent conveyance. Bay v. Cook, 31 Ill. 336; Patton v. Gates, 67 id. 164; Robinson v. Brems, 90 id. 351; Power v. Alston, 93 id. 587.
    Mr. B. M. Shaffneb, for the appellees:
    The answers are responsive to the bill, and are evidence for the defendants. Cummins v. Cummins, 15 Ill. 34; Blaisdell v. Bowen, 40 Vt. 126.
    Appellant failed to establish fraud, while Mrs. Hasten has shown she was the owner, and that her husband was but a trustee for her. Van Dorn v. Leeper, 95 Ill. 35; Seeders v. Allen, 98 id. 468; Phillips v. North, 77 id. 243.
    We refer to Tomlinson v. Matthews, 98 Ill. 178, from which the following propositions are deducible:

      First — Under the legislation of this State the common law disabilities of married women are completely changed, and the common law rights of the husband,- in respect to his wife’s property, have been abrogated. As respects her separate property the husband and wife stand before the law as strangers.

      Second — A husband in failing circumstances may make a settlement upon his wife in payment of an indebtedness from him to her, if made in good faith and for a valuable consideration.

      Third — The husband may prefer his wife, to the exclusion of other creditors, provided it is done in good faith and for a valuable consideration.
   Mr. Justice Dickey

delivered the opinion of the Court:

It is contended by the appellant that the allegations in the answers of the two Kastens, that Carl Kasten, the husband, bought the original lot held by him with the money of Fredericka, his wife, and took the legal title in his name without her knowledge or consent, whereby he held the same in trust for her, are not responsive to the bill, which required sworn answers, and hence did not amount to evidence, but had to be proved, in order to show her equities, if any, and that without proof of such allegations the arrangement by which the legal title was transferred from the husband tó the wife constituted a gift or voluntary settlement upon the wife, without any consideration to uphold the same as against creditors of the husband.

In the view w?e have taken of the case it is not necessary to decide whether the several averments in the answers are responsive to the bill or not, as, whether that be so or not, the decree dismissing the bill must be affirmed upon another ground. There is neither allegation nor proof of the insolvency of Kasten at the time of his conveyance to his wife. It is neither alleged nor proved that at that time he owed any debts whatever, or had any liability other than that upon the appeal bond in question. Nor is it alleged or proved that at that time he did not have property other than that conveyed to his wife, sufficient to meet the liability upon this appeal bond. In such case the conveyance, though voluntary, must be held valid. A voluntary settlement, otherwise good, will not be rendered invalid by an unsuccessful attempt to prove a valuable consideration. Lucas v. Lucas, 103 Ill. 121.

The owner of property may at any time give the same to any one he chooses, so long as he thereby injures no then existing creditor, and no subsequent creditor can call it'in question, unless the donor is guilty of an actual fraudulent intent, and such creditor is thereby injured. This follows from his-absolute dominion over his property, and the0mere fact that he may be indebted is not alone sufficient to make a gift or voluntary conveyance by him inoperative. If there is no intention on his part to delay or defraud his creditors, the conveyance is not within the statute. Bump on Fraudulent Conveyances, (3d ed.) page 269, says: “It is not conveyances where a man owes that are prohibited, but conveyances with the intent or purpose to delay, hinder or defraud creditors, ” — citing Lyne v. Bank of Kentucky, 5 J. J. Marsh. 545, Clayton v. Brown, 17 Ga. 217, Taylor v. Eubanks, 3 A. K. Marsh. 239, and Hunters. Waite, 3 Gratt. 26. On page 275 the same author says: “The presumption of an intent to delay, hinder and defraud creditors, arising from a voluntary conveyance by a person who is in debt, is not conclusive, for such a conveyance is fraudulent only where it necessarily delays, hinders or defrauds them. * * * Indebtedness, therefore, is only one circumstance from which an inference of an intent to defraud may be drawn, and must be considered in connection with the donor’s estate.” Again, on page 275, he says : “It is accordingly settled that mere indebtedness alone is not sufficient to render a voluntary conveyance void, if the donor has ample means left to pay his debts.” To the same effect may be found various decisions of this court. In Moritz v. Hoffman et al. 35 Ill. 553, the court say: “No creditor without a lien has any right to complain that, his debtor is giving away property to his wife or children, unless such creditor can establish the fact that he has not retained enough to satisfy existing debts. Such grantor must make himself insolvent by such gifts or conveyances, and to impeach them, fraud must be charged and proved, ” — citing Wyck v. Seward et al. 6 Paige, 62. In Emerson v. Bemis, 69 Ill. 537, the court say: “When there is no actúal fraudulent intent, and the gift or provision made by a debtor to his wife or child is a reasonable one under the circumstances, leaving ample property unincumbered for the payment of the party’s debts, not materially lessening their then prospect of payment, the gift or provision will be sustained as valid. ” See, also, Fanning et al. v. Russell et al. 94 Ill. 386; Patrick v. Patrick, 77 id. 555; Sweeney et ux. v. Damron et al. 47 id. 450; Mathews et al. v. Jordan et al. 88 id. 602; Lincoln v. McLaughlin, 74 id. 11.

In this case the bill alleges the liability of Carl Kasten to complainant, as surety on an appeal bond, at the time of making the provision in favor of his wife, but does not charge that he was insolvent, or that such provision or gift rendered him insolvent or unable to meet all his legal obligations, or even that he owed any other persons. In the absence of an allegation to that effect, sustained by proof, it can not be presumed that any■ other debts of Carl Kasten then existed. (Tunison v. Chambin et al. 88 Ill. 386.) As was said in the case of Fanning et al. v. Russell et al. supra: “Here, there is an entire want of evidence on the part of complainants to establish the fact that (Kasten) was insolvent when he executed the deed.” For aught that is shown in the record, Kasten may have retained at the time ample means to have met this only liability shown. His conveyance was made July 19, 1879, and the complainant did not recover judgment on the appeal bond until on August 7, 1882, and the execution was not returned until October 5, 1882. He may have been perfectly solvent in July, 1879, and when he in fact became insolvent does not appear.

Perceiving no error, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.