author: Mr. Justice Bailey

text:
    Arthur Keithley v. William Stafford.

      Filed at Ottawa November 15, 1888.

    1. Witness—competency—party in smt to contest a will, who is also a devisee. On a bill by an heir to set aside the will of his father, one of the defendants, the widow of a deceased son of the testator, to whom was given a legacy of $500 and an annuity of $180 for life, is a competent witness for the purpose of showing the want of testamentary capacity in the testator, her interest being to support the will.
    2. Same—practice—time to disclose prior will, as showing an adverse interest. In such case, if there is a prior will containing more favorable provision for the party proposing to testify, so as to make it to her interest to have the will in controversy set aside, that fact should be shown on the question of her competency, and objection should be made on that ground at the trial, otherwise such objection can not be availed of on appeal.
    3. WmiiS—presumption—as to knowledge of contents. In the-absence of evidence to the contrary, the law will presume that a person who executes a will or other instrument, does so with knowledge of its contents; but this is a presumption which will readily yield to evidence tending to show that such was not the fact.
    4. Same—testamentary capacity — evidence—opinions of witnesses. Witnesses who have had opportunities for knowing and observing the conversation, conduct and manner of a person whose sanity is in question, may depose not only to particular facts, but to their opinions or belief as to his sanity, formed from actual observation; but whether the party has that quantum of intelligence or mental capacity necessary to enable him to make a legal disposition of his estate, involves a question of law for the court to determine, and not for the witnesses. The witnesses may, however, he asked whether the party, at the time of executing his will, was capable of transacting ordinary business.
    5. Same—testamentary capacity defined—instructions. On the trial of a contest of a will by bill in chancery, the court, on behalf of the complainant, instructed the jury, “that the burden of proof in this case, in the first instance, is upon the proponents of said pretended will, to show that at the time of the execution of the alleged will the said E. H. was of sound mind and memory. By sound mind and memory is meant that his mind and memory were such as to be able to transact the ordinary business of life:” Held, that there was no error in the instruction. The use of the words “of sound mind and memory,” being in the language of the statute defining testamentary capacity, did not render the instruction erroneous.
    6. There is no substantial error in an instruction holding that if it was proved that the testator “was so diseased, mentally, that he was incapable, by reason of mental weakness, caused by disease or other derangement, of acting rationally in the ordinary affairs of life, and of intelligently comprehending the disposition he was making of his property, and the nature and effect of the provisions of said pretended will, the verdict should be for the contestant.” The use of the word “intelligent” instead of “reasonable” comprehension, did not render the instruction erroneous.
    7. Same—presumption arising from probate—instruction. On the contest of a will in chancery, the proponents of the will asked this instruction, which was refused: “In this case, the certificate of the oath of the subscribing witnesses at the time the will was admitted to probate, is prima facie proof, and therefrom the law presumes that the instrument so attested is the will of the said E. H., and that he was, at the time of its execution, of sound, disposing mind and memory, and that the will was not procured by any fraud or undue influence:” Held, properly refused, as containing an incomplete statement of the law, and as ignoring the evidence to rebut such presumption.
    8. Same—contest of will—characterizing the will as a “pretended” will —instruction. On the contest of a will, it is not proper for the court, in some of the instructions, to allude to the paper as the “pretended” will; but when this court can see, taking all the. instructions together, that the jury could not have been led, by the use of the word, to believe that the court intended to discredit the will and intimate it was spurious, the error will not be such as to call for a reversal.
    9. Same—new trial on the evidence as to mental capacity. Where the evidence tends strongly to show that the testator’s mental faculties were so far weakened and impaired by sickness, and the bewilderment and delirium occasioned thereby, as to render him incapable of knowing and understanding the business in which he was engaged at the time of executing his will, the verdict of .the jury finding a want of mental capacity in the testator will not be disturbed by this court.
    Appeal from the Circuit Court of Peoria county; the Hon. Thomas M. Shaw, Judge, presiding.
    This was a bill in chancery, brought by Elizabeth James, by William Stafford her conservator, against Arthur Keithley, Nancy Heaton, Alice Heaton, Edmond Heaton and Albert James, to contest the validity of the last will and testament of Edmond Heaton, deceased. On the 20th day of February, 1887, said Edmond Heaton died, leaving surviving him his daughter Elizabeth James and her son Albert James, and also his daughter-in-law Nancy Heaton, the widow of a deceased son, and her two children Alice and Edmond Heaton. The deceased, at the time of his death, was free from debt, and was the owner of a farm worth about $6000, and personal property of the value of about $8000 or $9000. One week before he died and during his last illness he executed a document purporting to be his last will and testament as follows:
    “I, Edmond Heaton, hereby declare the following to be my will, intending hereby .to revoke and annul all other wills by me heretofore made.
    “1st. I will, devise and bequeath unto Arthur Keithley all of the property, both real and personal, that I may own at the time of my decease, upon the following express conditions and trusts: That he reduce all my stock, choses in action and credits to money as soon as practicable after my death.
    “2d. That he give my daughter-in-law, Nancy Heaton, $500 in money within six months after my death.
    3d. That he give to my daughter Elizabeth $90 per year each year during her life, to be paid to her in three equal payments, the first payment, ($30) to he paid her at the exjfiration of four months after my death.
    “4th. That he give to Nancy Heaton aforesaid $180 each year during her life, exclusive of the $500 above given to her, the first payment to be made to her at the expiration of one year from my death.
    “5th. My said trustee is to rent my land to the best advantage, always giving to said Nancy the preference and refusal of the same at the price and terms offered by any other person.
    “6th. My trustee shall invest the funds coming to him from my estate in some safe, prudent manner, and render a strict account of his actions and doings, and shall re-invest the income from said funds, subject .to the above payments and legacies.
    “7th. When any of my grandchildren shall arrive at his or her majority, he or she, as the case may be, shall be paid by my trustee $500.
    “8th. All of my estate shall remain in my said trustee or his successor which shall be appointed by the circuit court of this county, until the death of both said Elizabeth and said Nancy, when he shall settle his accounts and be discharged, and the whole of what may be in his hands and belonging to my estate, both real and personal, shall descend to my grandchildren in equal parts, to be theirs absolutely and forever.
    “9th. It is my will that my said trustee, or his successor, be paid and allowed liberal compensation for his services as trustee.
    “10th. I hereby appoint Arthur Keithley executor as well as trustee of this my will.
    “Witness my hand and seal this February 13th, 1887.
    Edmond Heaton. (Seal.)
    “We, the undersigned, at the request of Edmond Heaton and in his presence, and in the presence of each other, subscribe our names as attesting witnesses to said signature, this February 13th, 1887.
    Daniel B. Thoepe,
    John Volz.”
    Said will was duly admitted to probate and letters testamentary were issued thereon to Keithley, who qualified and took upon himself the management of said estate. Heaton, at the time of his death, was a man about sixty-five years of age. The sickness of which he died, and which some of the witnesses say was bronchitis and others typhoid pneumonia, resulted from a severe cold contracted while doing some work on his farm in the rain. On the 9th of February he became so ill as to be confined to his bed, where he remained until his death, and it was during said sickness that his will was executed.
    Said will was drawn by Keithley, who had been Heaton’s attorney and legal adviser for several years and had been named by him as executor in a former will. The bill alleges that said will is not the will of said Heaton; that at the time of its execution Heaton was not of disposing mind and memory, but that his mind was so weakened and impaired by the malignant fever' and disease under which he was suffering as to render him wholly incapable of knowing what he was doing or of making any just and proper distribution of his estate. The bill also charges Keithley with the use of fraud, false representations and undue influence to induce said Heaton to execute said will, and of inserting therein provisions for his own benefit and advantage without the knowledge of said Heaton. Also that Keithley after writing the will, neglected and refused to read it to said Heaton, and that said Heaton signed it without knowing its contents.
    Nancy Heaton was defaulted and the bill was taken pro confesso as to her. The three grandchildren of the testator, being infants, answered by their guardians ad litem. Keithley answered denying the equities of the bill, and replications being filed, the following issue was submitted to the jury, viz: “Was the paper-writing propounded as the last will and testament of Edmond Heaton, deceased, the last will of said testator or not ?”
    The following special issues of fact were also submitted to the jury by the court in the instructions, viz:
    “First. Was the said Edmond Heaton, at the time he executed said alleged will, in such condition of mind and memory as to be capable of transacting the ordinary business of life ?
    “Second. Did the said Edmond Heaton, before and at the time of the execution of said alleged will, know the contents and provisions of the same and the manner in which he was disposing of his estate ?”

      The jury at the trial answered both the special questions of fact submitted to them in the negative, and found by their « general verdict that the will propounded was not the will of said Heaton. The court, thereupon, after denying a motion by Keithley, the proponent of the will, for a new trial, and also a like motion on behalf of Albert James by his guardian acl litem, entered a decree in accordance with the verdict, and Keithley alone has perfected an appeal to this court. Both Keithley, and Albert James by his guardian acl litem, have' appeared in this court and assigned errors, and upon these assignments of error the complainant has joined in error.
    Mr. H. W. Wells, for the appellant:
    Delirium is due to entirely different causes, and attended with entirely different consequences, from insanity, senile dementia, or any other mental infirmity. It is fleeting in its nature. Its existence, if shown, raises no presumption of its continuance. In fact, the presumption is, that after the lapse of a reasonable time, or when the disturbing cause is removed, delirium will cease. Bedfield on Wills, (3d ed.) p. 81, sec. 3; Hix v. Whittemore, 4 Metc. 545; Townshend v. Townshend, 7 Gill, 10.
    The delirium of disease rises and falls with the disease. Bedfield on Wills, (3d ed.) p. 81, sec. 3; Trish v. Newell, 62 Ill. 200 ; Schneider v. Manning, 121 id. 386.
    Flightiness, or wandering of intellect during sickness, is of very little importance. . Bedfield on Wills, (3d ed.) p. 116; McMasters v. Blair, 29 Pa. St. 298.
    If the delusion or delirium is that caused by disease, it is obviously temporary in its character. It will continue only during the existence of the fever in which it originated. There is no presumption of its continuance. Staples v. Wellington, 58 Me. 460.
    Nancy Heaton, being a party to the suit, was not a competent witness. Wagenseller v. Prettyman, 12 Bradw. 341;
      Boynton v. Phelps, 52 Ill. 219; Merrill v. Atkin, 59 id. 19; Whitmer v. Rucker, 71 id. 412.
    One of- the crucial tests of mental health, soundness and competency, is memory. Taylor’s Med. Jur. 675; Hathorn v. King, 8 Mass. 371; Mack v. Bryant, 4 H. & M. 91.
    The use of the word “pretended, ” in the instructions, as applied to the will, was improper and highly injurious. McGirr v. Hunter, 13 Bradw. 199.
    The probate of the will was prima facie evidence of its validity. Holloway v. Galloway, 51 Ill. 161; Carpenter v. Calvert, 83 id. 71; Buchanan v. McClellan, 105 id. 59.
    The second of contestant’s instructions was erroneous. It virtually told the jury that unless Heaton was mentally able to transact the ordinary business of life, he was not competent to make a will. A party may be so mentally diseased as not to be of sound mind, and yet may possess a disposing mind. 1 Jarman on Wills, 51; McClintock v. Curd, 32 Mo. 419; Trish v. Newell, 62 Ill. 205; Brown v. Riggin, 94 id. 569; Freeman v. Easly, 117 id. 320; Rutherford v. Morris, 77 id. 397; Meeker v. Meeker, 75 id. 260.
    The law has never gone so far as to require a testator to intelligently comprehend the nature and effect of the provisions of his will. All that can be said is, he must reasonably understand the business he is engaged in at the time the will is executed. Brown v. Riggin, 94 Ill. 569; Trish v. Newell, 62 id. 205; Freeman v. Easly, 117 id. 320.
    Mr. W. T. Whiting, for the appellee:
    As to the test and evidence of mental capacity, see Holloway v. Galloway, 51 Ill. 159; Meeker v. Meeker, 75 id. 260; Bible Society v. Price, 115 id. 623; Yoe v. McCord, 74 id. 33; Trish v. Newell, 62 id. 196.
    Nancy Heaton was a competent witness. Bev. Stat. 1874. chap. 51, sec. 2.

      The use of the word “pretended,” in reference to the will, could not have misled the jury, even if it was improper; and the presumption will be indulged by the court, that the jury understood the instructions as they commonly impress the mind. Green v. Lewis, 13 Ill. 642; Worden v. Salter, 90 id. 160; Life Ins. Co. v. Robinson, 98 id. 324; Gilchrist v. Gilchrist, 76 id. 281; Pierce v. Hasbrouck, 49 id. 23.
    The principle of law as announced in the first instruction is warranted by the statute of Illinois and the following decisions: Rigg v. Wilton, 13 Ill. 15; Holloway v. Galloway, 51 id. 159; Rev. Stat. chap. “Wills,” sec. 7.
    The third instruction for contestant announces a correct rule of law, and does' not assume any facts. It directs the jury that should they believe, from the evidence, that Edmond Heaton was so diseased, mentally, that he was incapable of . acting rationally in the ordinary affairs of life, or intelligently comprehending the disposition he was making of his property, and the nature and effect of the provisions of his will, then they might find for contestant. The rule of law announced in this instruction has been many times sanctioned by this-court, and in the case of Meeker v. Meeker, 75 Ill. 260, the court has gone further, and said that the derangement must be of that character which renders a person “incapable of understanding the effect and consequences of his act.” Meeker v. Meeker, 75 Ill. 260; Brown v. Riggin, 94 id. 560.
    Mr. Nicholas Ulrich, for the minor heirs.
   Mr. Justice Bailey

delivered the opinion of the Court:

At the trial, Nancy Heaton, one of the defendants and a-legatee under the will, was called as a witness by the complainant to prove the want of testamentary capacity of Edmond Heaton at the time he executed the will. Her testimony was objected to by Keithley, who was a co-defendant and the proponent of the will, as incompetent, which objection was overruled by the court, and the admission of said testimony is now assigned for error.

It is claimed that said witness was incompetent under the provisions of the second section of the statute in relation to evidence and depositions. The first section of the statute removes the common law disqualification of witnesses in civil actions, suits - and proceedings by reason of their interest in the event thereof, as a party or otherwise, except as therein-after provided, and the second section provides that no party to such action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein, of his own motion or in his own behalf, by virtue of the preceding section, when any adverse party sues or defends as the executor, administrator, heir, legatee or devisee of any deceased person, or as guardian or trustee of any such heir, legatee or devisee, unless when called as a witness by such adverse party so suing or defending.

We are unable to perceive how the admission of the testimony of this witness in any way contravened the provisions of this statute. She did not testify as a witness on her own motion, but was called by the complainant who was not only, in form, the opposite party suing as the heir of a deceased person, but a party whose interests in the subject matter of the litigation were in all respects adverse to those of the witness. Nor can she be said to have been permitted to testify in her own behalf. She was the widow of a deceased son of the testator, her husband having died while the testator was yet alive. She therefore had and could have no interest in the estate of the testator by descent. Her only interest was that derived from the will, viz., a legacy of $500 in cash and an annuity for life of $180. Her right to this legacy depended upon the maintenance of the will. She was called as a witness by the party who was seeking to defeat the will, and the tendency of her testimony was to show a want of testamentary capacity in the testator at the time the will was executed. Her testimony therefore was clearly against her interest. Remann v. Buckmaster, 85 Ill. 403.

But it is said that a former will of the testator, more favorable to the witness in its provisions, was in existence, and that if the will in controversy should be set aside, such former will would be entitled to be probated as the will of the testator. It is argued therefore that the interest of the witness preponderated in favor of the former will, and that to that extent she was permitted to testify as a witness in her own behalf. Without pausing to determine how far her competency might have been affected, if at all, by the provisions of the former will, it is sufficient to say that no such objection to her competency was made at the trial. At the time she was called as a witness no suggestion was made as to the existence of a former will. After she and the other witnesses for the complainant had testified and the complainant was about to close her ease, she called Keithley to the witness stand and asked him whether he had another will executed by the testator, to which he replied that he had such will in his pocket but declined to produce it. The court being asked to order a production of said will, reserved its decision. After the evidence for the defendants was completed and they had rested, the complainant renewed her motion, which being sustained, the will was produced. Its execution was then proved by two of the subscribing witnesses, and it was read in evidence by the com- . plainant, but no motion was then interposed by the defendants to exclude the testimony of Nancy Heaton, nor was any suggestion made that her competency was in the least affected by ' the provisions of said will. It is clear that under these circumstances the defendants are now in no position to avail themselves of the provisions of the former will as tending to establish the incompetency of Nancy Heaton as a witness.

The complainant alleges that the will in controversy is not the will of Edmond Heaton, deceased, and the validity of said will is attacked by the averments of the bill .on three grounds, viz: 1. That at the time of its execution the testator was not of disposing mind and memory, hut that his mind was so weakened and impaired hy the malignant fever and disease under which he was suffering, as to render him wholly incapable of knowing what he was doing or of making any just and proper distribution of- his estate. 2. That Keithley made use of fraud, false representations and undue influence to induce the testator to execute said will and to insert therein provisions for his, Keithley’s, benefit and advantage, without the knowledge of the testator. 3. That Keithley, after writing the will, neglected and refused to read it to the testator, and that the testator signed it without knowing its contents, fío evidence was introduced tending to sustain the second of these allegations, and the verdict and decree must therefore rest entirely upon the evidence applicable to the two other issues raised by the bill.

Upon the issue as to whether the testator, at the time of the execution of the will, knew its contents and provisions, there is very little if any conflict in the evidence. The question is not as to the preponderance of the evidence, but as to whether the undisputed evidence is sufficient to warrant the conclusion that the will was not read to the testator and that he did not know its contents at the time he signed it. fiancy Heaton testifies that during all the time it was being drawn, and up to the time it was signed and taken away by Keithley, she was either in the room in which the testator was lying or in the room adjoining, and was all the time in a position where she would have heard the reading of the will if it had been read, and that she did not hear it read. Thorpe, one of the witnesses to the will, testifies that he called to see the testator on the day the will was executed and found Keithley in the room writing at a desk; that after talking with the testator a minute or two, he went out into the adjoining room and sat there until called by Keithley to witness the will; that during all that time the door between the rooms was partly open, and that he was so situated as to be able to hear the voice of a person in conversation or reading in the room where the testator and Keithley were; that lie did not hear any continued conversation or reading, and that if there had been any he would have heard it. • There is also evidence that on one or more occasions on subsequent days the testator inquired of those about him whether Keithley had got his will as he wanted it, and proposed to have him sent for, thus evidencing an ignorance on his part as to the contents of the will. On the day of his death, Keithley being present, the testator again asked him if the will was all right. These facts, together with the evidence of the mental as well as physical condition of the testator at the time the will was executed, were before the jury, and it was for them to put upon them such construction as they would fairly and reasonably bear. There was no contradictory evidence. It is true the law, in the absence of all evidence, will presume that a person who executes a will or other instrument, does so with knowledge of its contents, but this is a presumption which will readily yield to evidence tending to show that such was not the fact. The question presented by the foregoing evidence was purely a question of fact for the jury, and they having considered it and reached the conclusion that the will was not read to the testator, we can not say that their finding is unwarranted by the evidence. There certainly was evidence tending to support the verdict, and in the absence of countervailing evidence, upon familiar principles of law, the' verdict must stand.

Upon the question of the testamentary capacity of Heaton at the time he executed said will the evidence is conflicting. It is not disputed that he was suffering at the time from a very severe and dangerous illness, an illness which one week later resulted in his death. The evidence tends to show that on the day the will was executed he had a high fever and was to a very considerable degree delirious. John Volz, one of the witnesses to the will, saw him shortly before the will was drawn. This witness testifies that he seemed bewildered and did not appear to know at first what was said to him; that when aroused he would answer a question, and then turn .away and doze again and commence talking incoherently to himself something the witness could not understand; that when aroused and spoken to again he turned back and was laughing, and seemed to be thinking about something else. Nancy Heaton who was with him and took care of him during his sickness testifies, that he was restless and feverish the previous day and night; that he got up and went to the next room and attempted to pour himself some tea and was there tottering about the room, until the witness, with the help ■of Elizabeth James who was present, got him back to bed again; that at the time the will was being written his skin "was dry and hot and his face red and feverish; that she was bathing his hands and face and he asked for a drink of cider; ihat she brought him some sweet cider which he refused to ■drink saying that it was not cider'; that shortly after the will was executed and Keithley had gone away, he commenced talking and muttering to himself, and when she went to him and got him to know who she was, he would say, “Oh, I thought I was talking to Keithley;” that an hour or two after the ■execution of the will he got out of bed, staggered to the door, opened it and was going out, and when the witness attempted to get him back he asked why she did not let him go, as it was hot in there, there being in fact no fire in the room. ■Some other witnesses were examined whose testimony tended to show that the testator, though very sick, was capable of ■acting rationally in the ordinary affairs of life, and of comprehending the disposition he wished to make of his property.

The jury, in view of all the evidence, reached the conclusion that his mental faculties were so far weakened and impaired "by his sickness and the bewilderment and delirium occasioned thereby, as to render him incapable of knowing and understanding the business in which he was engaged at the time he executed the will. It can not be doubted that the evidence on behalf of the complainant strongly tended to support that conclusion, and the jury having so found, we see no ground for disturbing their verdict as being unsupported by the evidence.

Witness Nancy Heaton, after having testified fully as to all the facts within her knowledge in relation to the testamentary capacity of the testator, was asked, and, against the objection and exception of Keithley and the guardian acl litem of Albert James, was permitted to answer, the following questions : “Ques. In your opinion do you think Edmond Heaton was, at the time he made this will, of sound mind and able to understand what he was doing at the time ? Ans. He was too sick a man. Ques. Was Edmond Heaton on that day capable of transacting ordinary business ? Ans. I think not.” The decision of the court in permitting these questions to be answered is assigned for error, and in support of said assignment we are referred to the decision of this court in Schneider v. Manning, 121 Ill. 376.

• The question asked and answered in that case differed from those under consideration here in that it called for the opinion of the witness, not merely as to the sanity of the testator and his capability of transacting ordinary business, but of his mental capacity to dispose of his property by will or deed. Whether a party has that quantum of intelligence or mental capacity which is necessary to enable him to make a legal disposition of his estate involves a question of law for the court to determine and not for the witness. The great preponderance of authority in this country, however, is in favor of the proposition that witnesses who have had opportunities for knowing and observing the conversation, conduct and manners of the person whose sanity is in question, may depose not only to -particular- facts, but to their opinions or belief as to the sanity of the party, formed from actual observation. Farrell’s Administrator v. Brennan’s Administrator, 32 Mo. 328; State v. Pike, 49 N. H. 399; (see dissenting opinion of Doe, J.y in which all the authorities on this subject are collected;) Hardy v. Merrill, 56 N. H. 227, in which the authorities are fully discussed, and the dissenting opinion of Doé, J. in State v. Pike is adopted.

If, however, we were compelled to hold that there was error in permitting the questions complained of to be answered, such error must be held, on the authority of Schneider v. Manning, supra, not to be an error of such magnitude as to necessitate a reversal of the decree.

In several of the instructions given by the court to the jury at the instance of the complainant, the will in controversy is alluded to as the pretended will. The use of this word in such connection is justly criticised, but we are of the opinion that, in view of all the instructions, the jury could not have been misled by its use into the belief that the court thereby intended to discredit the will, or to intimate an opinion that it was spurious. While we can not approve of the language of the instructions in this respect, we are of the opinion that, under all the circumstances, no material prejudice has resulted to' the defendants.

It is claimed that the second instruction given at the instance of the complainant is erroneous. It is as follows:

“You are instructed that the burden of proof in this case, in the first instance, is upon the proponents of said pretended will, to show that at the time of the execution of the alleged will, the said Edmond Heaton was of sound mind and memory. By sound mind and memory is meant that his mind and memory was such as to be able to transact the ordinary business of life.”

It is suggested that this instruction is erroneous in requiring proof that the testator, at the time he executed the will in question, was of sound mind and memory, it being suggested that a party may be so diseased mentally as not to be of “sound mind,” and yet possess what the law terms a “disposing mind.” It is a sufficient answer to this criticism to say that in this respect the instruction follows the exact language of the- statute. The first section of the Statute of Wills, in prescribing who shall be capable of making wills, provides, “That every male person of the age of twenty-one years, and every female of the age of eighteen years, being of sound mind and■ memory, shall have power to devise all their estate, etc., by will and testament.” A sound mind and memory, within the meaning of the statute, is thus made a necessary qualification for a testator in order to the execution of a valid will. While it may be that it was not the intention of the statute to introduce any essential modification of the common law rule in this respect, it can not be said that an instruction which uses the very words of the statute is erroneous for that reason.

But objection is made to the explanation or definition given by the instruction of the statutory words, “sound mind and memory,” viz., that it is that condition of mind and memory which would render the testator capable of transacting the ordinary business of life. This, it is said, is too broad, and calls for a higher degree of mental capacity than the law requires. No set form of words has been adopted as forming the exclusive equivalent of the words “sound mind and memory.” As said by this court in Trish v. Newell, 62 Ill. 196, “It is probable that no court has ever attempted to lay down any definite rule in respect to the exact amount of mental capacity requisite to the making of a valid will, without appreciating the difficulty of the undertaking.” It is true, in the case last cited, the formula adopted by Jarman in his Treatise on Wills as the most simple and intelligible form in which to submit the question to a jury, is cited with approval, viz., “Were the mind and memory of the testator sufficiently sound to enable him to know and understand the business in which he was engaged at the time he executed his will ?” But the form in which the question was submitted by the instruction in this case has also been repeatedly approved or recognized by this court, doubtless upon the theory that the two forms of expression are substantially equivalent. Thus, in Brown v. Riggin, 94 Ill. 560, it is said: “The question of capacity involves the simple inquiry, whether the testatrix was or was not, at the time in question able to understand and reasonably transact the ordinary business of life. Was she able to buy and sell and collect accounts ? Did she understand the business in which she was engaged ?” In Meeker v. Meeker, 75 Ill. 260, the same rule is adopted, it being there said that “The usual test is, that the party be capable of acting rationally in the ordinary affairs of life.” See also, Rutherford v. Morris, 77 Ill. 397; Freeman v. Easly, 117 id. 317. It would indeed be difficult to conceive of a case of a testator whose mind and memory were so weakened and impaired by disease as to render him incapable of understanding or transacting matters in relation to his ordinary business, and who would at the same time have sufficient mental capacity and vigor to understand and transact the more important business of disposing of his entire estate by will.

We think, for the reasons above stated, that there was rio substantial error in the complainant’s third instruction in which it was held that if it was proved that the testator “was so diseased mentally that he was incapable, by reason of mental weakness caused by disease or other derangement, of acting rationally in the ordinary affairs of life and of intelligently comprehending the disposition he was .making of his property, and the nature and effect of the provisions of said pretended will,” the verdict should be for the complainant. Fault is found with the use of the word “intelligent” as requiring a higher degree of understanding than the rules of law require. It is admitted that there should be a capacity to reasonably understand or comprehend the business in which the testator was engaged in making his will, but it is argued that an “intelligent comprehension” is something more than a “reasonable comprehension.” As every act of comprehension or understanding is necessarily an act of intelligence, we can not see how the use of the word could have been materially prejudicial to the defendants.

The defendants asked the court to give to the jury the following instruction which was refused, and its refusal is assigned for error:

“In this case the certificate of the oath of the subscribing witnesses at the time the will was admitted to probate, is. prima facie proof, and therefrom the law presumes that the instrument so attested, is the will of the said Edmond Heaton, and that he was at the time of its execution of sound, disposing mind and memory, and that the will was not procured by any fraud or undue influence.”

It is sufficient to say, that the giving of this instruction without qualification, would have been likely to mislead the jury into the belief that the presumption which the law raised from the proof received at the probate of the will was a conclusive one. The instruction was only an incomplete statement of the law applicable to the case. It should have contained the qualification that the legal presumption would be as stated unless or until rebutted by proof, showing the contrary to be the fact. An incomplete statement of a rule may often be quite as prejudicial as a false statement of the rule. It would have been peculiarly so in this case, there being evidence sufficient to overcome the presumption stated, and which the instruction wholly ignored.

Other points are alleged by the appellant which we need notice no further than to say, that we have duly considered them and are of the opinion that none of them are well taken. As we find no material error in the record, the judgment will he affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    John B. Tyler v. William A. Tyler.

      Filed at Ottawa October 2, 1888.

    1. Fraudulent conveyance—character of claims within the statute. The fourth section of the Statute of Frauds, which makes void any gifts, grants, etc., made with intent to hinder, delay or defraud any "“creditor or other person,” applies to transfers of a husband made to delay, hinder and defraud his wife in the assertion of her right to a separate maintenance.
    2. In anticipation of legal steps being taken by his wife for a separate maintenance, the husband made an assignment of certain securities to his son, amounting to about $100,000, upon the expressed consideration of $10,000, and the agreement of the son to pay him, for and during his natural life, the sum of $5000 per annum, to be paid semi-annually from the date of the writing, the father to be the sole judge of his necessities, and the son being required to make such payments when demanded: Held, that the assignment, upon its face, was plainly fraudulent, in that it attempted to secure the use of the property to the father to the exclusion of all others having claims upon him.
    3. Same—right of grantor to a reconveyance. In addition to the assignment of the greater part of the securities owned by the husband, for the purpose of delaying, hindering and defrauding his "wife in respect of the anticipated suit for separate maintenance, he also caused his lands to be conveyed to the son for the same purpose. The son gave the grantor his written agreement to give him back the securities and lands when demanded. The wife obtained a decree for separate maintenance, when the grantor executed to his son "another agreement, antedated, whereby he released the son from the payment of the $5000 per annum, on condition the son should furnish him with bed and board in his family during life, and kind treatment. Afterward the grantor filed his bill against .the son, for the reconveyance of the property: Held, that the conveyance was fraudulent, and that the grantor could not maintain the bill.
    4. Same—who may avail of the fraudulent character of a convey once— us to the grantee, or a trustee. It is competent to go behind the language of a writing, and show that the real purpose of its execution is to delay and defraud creditors, in violation of the Statute of Frauds,— and this in behalf of the party ostensibly bound by the instrument, and to defeat a suit for its enforcement.

      5. ' Although a transfer of property by a father to his son contains nothing on its face to show an intention to defraud others, it is competent for the grantee, on bill by the grantor for a reconveyance, to show that the transfer and conveyance were in fact made to prevent the grantor’s wife from obtaining separate maintenance and support from his property, and that the papers declaring the trust were executed secretly, and knowledge thereof withheld from the public, to enable the grantor to re-assert his ownership of the property after having accomplished the purpose of the transfer.
    6. A trustee, however, into whose hands money is paid on account of a third person, can not set up the illegality of the trust under which the money was so paid, though the cestui que trust could not have enforced his right against the payer directly, as in that case he could only have obtained the money through the illegal agreement.
    7. Sake—secret trust—how created. The question of the secrecy or publicity of the trust in the transfer of property with intent to defraud creditors, is not affected by the circumstance whether it was created by an oral declaration, only, or by a writing. That affects simply the question of proof. A trust created by a merely verbal expression of it, may yet be public, and a trust, though expressed in writing, may be secret, if the fraudulent grantee, without the knowledge of any one other than the fraudulent grantor, executes a writing declaring the trust, and gives it to the latter, who keeps it secretly in his own possession.
    8. Sake—subsequent agreement to create a trust—of its validity. In the case of a fraudulent conveyance or assignment, it is competent for the parties thereto to subsequently make a new and independent agreement for a sufficient valuable consideration, whereby the grantee or assignee shall be obligated to hold the property in trust for the grantor or assignor; but such agreement must be open and notorious, and made in good faith to establish a trust in the property, otherwise it will be but attempting to create anew a secret trust already condemned by the statute. »
    9. Contract—consideration—resulting from, an illegal agreement. Where an act, though the result of an unlawful contract, is itself lawful, it may form the consideration for a lawful agreement, as, for instance, the actual transfer of stock, the agreement to do which was illegal.
    10. PRrvniEeED communications—to an attorney. The statements of a fraudulent grantor, made to the attorney of the grantee, in respect to the purpose of the former in making the conveyances and assignments of his property, are not privileged, as against such grantor, but may be proved by the grantee in a suit by the grantor against the grantee for a reconveyance.
    11. Practice in the Supreme Court—as to parties not appealing. Where only one of several parties appeals from the decree of the trial court to the Appellate Court, where the case is heard, and afterwards brought to this corn*, it was TteM, that this court could not pass upon the rights of the parties not appealing, and could only consider the case as it was before the Appellate Court.
    Appeal from the Appellate Court for the First District;—• heard in that court on appeal from the Superior Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding.
    In May, 1885, William A. Tyler was married to a second wife. He then resided in Broome county, New York, and owned real estate in that county, and notes, bonds and mortgages, of the value of $100,000, or more. John B. Tyler was the son of William A. T3'ler, by his first wife, and at that time resided at Conneaut, Ohio. This second marriage was infelicitous, and a separation followed within a few months. William A. Tyler then gave notice, by publication, that he would pay no debts thereafter contracted by his wife, and she, some time thereafter, commenced proceedings in the proper court, in Broome county, New York, for a decree for separate maintenance. Before the commencement of these proceedings, and in anticipation thereof, on or about the 27th of August, 1885, ■ William A. Tyler went to Conneaut, Ohio, and then assigned and delivered to his said son, John B. Tyler, the principal part of his notes, bonds, mortgages, etc. This assignment was evidenced by writing, signed by both parties, containing a detailed description of the notes, bonds, mortgages, etc., assigned, and it concluded as follows: “And it is further agreed upon the part of said John B. Tyler, that he will pay to the said William A. Tyler, for and during the term of the natural life of him, the said William A. Tyler, the sum of five thousand (5000) dollars per annum, to be paid semi-annually, in sums of two thousand and five hundred- (2500), from and after this date. Said payment, however, is to be made by the said John B. Tyler only upon the consideration that the sum is necessary for the support of him, the said William A. Tyler;
      and said William A. Tyler shall have full right to demand said sum, or any part thereof, and he shall be the judge of his necessities in this respect, and he, said John B., when the same is demanded, shall not refuse to pay upon the ground that such sum is not necessary for support.” The consideration expressed, in addition to this undertaking of John B., is $10,000.
    In the afternoon of the same day, the following additional writing was executed and delivered by John B., at the request of William A.:
    “Conneaut, 0., Aug. 27, 1885.

    “I, John B. Tyler, hereby agree, whenever demand is made by William A. Tvler,' to surrender hack to him certain personal property heretofore transferred to me, amounting to about .$80,100, by him, said William A. Tyler, together with the interest due upon the securities, and for which I bind myself and my heirs for the above amount, and the said accumulated interest.
    John B. Tyler.”
    It is claimed by William A., that the consideration of $10,000, expressed as the consideration for the assignment, in the writing first executed, was paid by the note of John B. for $5000, and certain drafts for $5000, delivered by John B. to him, and that upon the execution and delivery of this last writing to him by John B., and as the consideration thereof, he returned to John B. his promissory note for the $5000 and the drafts for the other $5000.
    William A. at this time owned an undivided half of two farms in Broome county, New York, designated as the “Whitney’s Point” and “Jacob Slack” farms, and on the 9th day of September, 1885, he conveyed his interest in them to Henry A. Sheldon, for $6500." On the 11th day of September, 1885, Sheldon conveyed his interest in these farms to John B. Tyler, for an advance of $100 on the price he paid. The money was furnished John B. by William A., and at the time of the transaction John B. executed and delivered to "William A. the following:
    “Binghamton, N. Y., Sept. 11, 1885.

    “I have received the value of lands this day deeded to me hy Henry A. Sheldon and wife, of William A. Tyler, and I bind myself, heirs and assigns, to give as good a title, on demand, as I have received, for value received.
    J. B. Tyler.”
    About the same time, under the advice of counsel, William A. executed a more formal assignment of certain mortgage interests to John B., which need not be set out.
    The bill for maintenance was filed by the wife of William A. on the 6th of October, 1885. At that time John B. was residing in Chicago, and William A. had been residing with him. William A. returned to Binghamton after the filing of the bill for maintenance, and was there personally served with process. On the 29th of December, 1885, an order was made in the maintenance suit, that William A. pay to his wife $12.50 per week from October 17, 1885, and $300 for costs of suit.
    In January or February, 1886, William A. executed and delivered the following instrument to John B., which he dated back to a time anterior to the filing of the bill for maintenance:
    “Chicago, Sept. 80, 1885.

    “In consideration of having bed and board furnished me in the family of J. B. Tyler (my son) during the balance of my natural life, I hereby release from operation a certain proviso or annuity of $5000 per year, mentioned in an assignment made at Conneaut, Ohio, and bearing date of August 27,1885. Provided, however, that said bed and board shall be substantially the same as that of the rest of said family, and also that kindness is extended to me by each and every member of said family.
    “Any violation of the above proviso shall terminate and end the life of this instrument, at my option; and upon notice of same, then the annuity heretofore mentioned shall commence and be in operation the same as it was before the birth of this instrument. And this instrument also includes clothing and doctor bills.
    (Signed.) William A. Tyler.”
    William A. Tyler filed his bill in the Superior Court of Cook county, against John B. Tyler, omitting any mention of his second marriage, alleging the execution of the instruments hereinbefore recited; that he had become aged and infirm', and was in bad health and in mental distress, and about to travel, and that the assignments were made merely for his convenience, and to enable John B. Tyler to act as his agent, and assist him in transacting his business, etc.; that it was agreed between him and John B., that the assignment should not take effect as long as William A. was able to manage his business and affairs; that he continued able to manage his business and affairs, and said assignment was treated as of no force; that John B. never paid any part of the annuity; that upon the advice of John B., and upon said original agreement that he would, upon request, re-assign said notes and securities to William A., and for the purpose of enabling John B. to aid William A. in the collection of interest, etc., and for the purpose of enabling John B. to aid William A. in re-investing the principal, William A. permitted the securities to remain in the name of John B., and re-invested some of the principal and interest collected on said securities, in the name of John B., and that all the money for which said notes and other securities were given, belonged to William A.
    An amendment was made to the bill, during the trial, alleging that “some time during the month of March, 1886, said defendant executed and delivered to your orator a written statement, whereby he, said defendant, declared and stated that all of said securities and properties herein described as standing in his name, and claimed to belong to your orator, including said annuity of $100, were held by said defendant in trust for your orator, but the precise terms of said written statement your orator can not set forth, as the same is not now in the power, possession or control of your orator, and your orator is unable to produce the same.”
    The prayer of the bill is, that “defendant may be enjoined from collecting any money due or to become due upon said certificate of deposit and said note of said Clark, and from selling, assigning, conveying or in any manner incumbering said certificate of deposit and note, and from selling, mortgaging and incumbering the real estate above mentioned, and from any further interference in the management and control of said property; that said defendant may be decreed to reassign, transfer and convey to complainant said securities and land, and upon his failure to do so, that a master may be ordered to make the same, and for other relief.”
    The answer denied the execution of the written statement set up in the amendment; alleged the marriage of William A., the subsequent separation from his wife, and the institution and prosecution of the proceedings for separate maintenance, and alleged that the assignments, transfers, etc., set out in the bill, were made solely for the purpose of defrauding the wife of William A., and preventing her from obtaining maintenance and support from his property.
    The Superior Court, on hearing, found and decreed as follows : “The court finds that the several assignments, transfers and indorsements of notes and securities and choses in action, and the several conveyances of real estate made by complainant to defendant, in the pleadings mentioned, were made and executed for the purpose of hindering and delaying the wife of complainant in enforcing any claim against him for maintenance, support or alimony, and that defendant had knowledge of said purpose; that the several notes, mortgages and other securities referred to in the amended bill, which are now in the possession of complainant or his solicitors, to-wit, the Caruthers note and mortgage and the Morton note and mortgage, were never delivered to defendant, but remained in the lawful possession of complainant or his solicitors; that the Woolsey note'and mortgage, the Eawson note and mortgage, the Watson note and mortgage, and the Parsons note, were delivered to defendant, and by him delivered to complainant, and thereafter remained in the lawful possession of complainant or his solicitors; that said notes and mortgages of Eawson, Watson and Parsons were taken in renewal of and exchange for notes of the same makers, mentioned in the original assignment made by complainant to defendant, dated August 27, 1885, and that said Watson note and mortgage were purchased with money collected on securities, also mentioned and described in said assignment; that the three bonds and mortgages assigned by Tracy B.' Morgan to defendant, were never delivered to defendant, but remain in the possession of complainant, but that complainant did, about the month of November, 1885, place the defendant in the possession of the real estate described in said mortgages, and known as the ‘Osborne Hollow farm;’ that the original assignment by the Susquehanna Valley Bank, to complainant and Henry A. Sheldon, of the Beach House mortgage, has been and is in the possession of said Sheldon ever since the same was made, and that complainant executed an assignment thereof to defendant, dated January 20, 1886, which assignment is still in the possession of defendant; that the original assignment made by Abel Bennett to complainant, of $10,000 in the Dean College mortgage, was assigned, by indorsement thereon, by the complainant to the defendant, and in the month of January, 1886, delivered by complainant to defendant, and in the same month re-delivered by defendant to complainant, since which time it has remained and is in the possession of complainant, and that afterwards, in the same month, complainant made and delivered to defendant a formal assignment of the interest in said mortgage so assigned by said Bennett, and of the mortgage given by one Perry, as collateral security for the same, which assignments are in the possession of defendant; that the notes, mortgages and other securities in the hands of Edward P. Kirby, to-wit, the notes of Christy & McDowell and Conkle, are indorsed, ‘Pay to the order of J. B. Tyler.—"Win. A. Tyler,’ were delivered to said defendant, and are now in the possession of said Kirby, as the agent and attorney of said defendant; and it is decreed that the bill and amended bill be dismissed, each party to pay his own costs.”
    On appeal to the Appellate Court for the First District this decree was reversed, and the cause was remanded to the Superior Court, with direction to that court to “enter a decree requiring the appellee” (in that court, John B. Tyler,) “to surrender, transfer and set over to appellant,” (in that court, William A. Tyler,) “and to fully account to him for all securities referred to in said declaration of trust bearing date August 27, 1885; and also requiring said appellee” (in that court, John B. Tyler,) “to convey, by proper deed to appellant,” (in that court, William A. Tyler,) “the legal title to the lands situated in the State of New York, and referred to in the declaration of trust dated September 11, 1885.” The cause comes to this court by the appeal of John B. Tyler from that judgment.
    Messrs. Egberts, Hutchinson & Thomas, for the appellant:
    He who comes into a court of equity must come with clean hands, and a court of equity will not interfere in behalf of a fraudulent grantor. Miller v. Marckle, 21 Ill. 152; Dunaway v. Robertson, 95 id. 419; Smith v. Hubbs, 10 Me. 71; Bott v. Rogers, 3 Paige, 154.
    It is not necessary there should be any actual defrauding of creditors intended. - It is sufficient if there was an intention to place property beyond their reach for the time being. Phelps v. Curtis, 80 Ill. 110; Nesbitt v. Digby, 13 id. 387; Fitzgerald v. Forristal, 48 id. 228; Ryan v. Ryan, 97 id. 38;
      Jones v. Read, 3 Dana, 540; Eyre y. Eyre, 19 N. J. Eq. 42; Hershy v. Weiting, 50 Pa. St. 344.
    In case of a fraudulent conveyance, a subsequent oral agreement to convey to the grantor will not be enforced. Haisam v. Barrett, 115 Mass. 256; Norris v. Norris, 9 Dana, 318; 1 Pomeroy’s Eq. Jur. sec. 401; 1 Bispham’s Eq. p. 310, sec. 248; Bump on Fraud. Con. (3d ed.) 477, 478.
    A wife, as to her right of support and maintenance or alimony, is as much within the statute as a creditor. Rev. Stat. chap. 59, sec. 3; Draper v. Draper, 68 Ill. 17; Sapp v. Wightman, 103 id. 150; Faker v. Brown, 2 Blackf. 295; Feighy v. Feighy, 7 Md. 537; Sanburn v. Long, 41 id. 84; Bails v. Bails, 1 Cold. 287; Nix v. Nix, 10 Heisk. 546; Livermore v. Boutelle, 11 Gray, 290; Lonsdale’s Estate, 29 Pa. St. 413; Evans v. Harris, 12 Harr. 66; Chase v. Chase, 105 Mass. 385; Boslaugh v. Boslaugh, 68 Pa. St. 499; Tanner v. Tanner, 44 Ala. 453; Bump on Fraud. Con. 505.
    Equity will not decree the performance of an agreement by the fraudulent grantee. 1 Pomeroy’s Eq. Jur. 400; Bump on Fraud. Con. 447; Waterman on Specific Per. 340 ; Waite on Fraud. Con. 521; Taylor v. Merrill, 55 Ill. 61; Tamm v. Lavalle, 92 id. 267; Walton v. Trustees, 49 Miss. 569; Frisby v. Ballance, 4 Scam. 287; Bowman v. Cunningham, 78 Ill. 48.
    Messrs. Hutchinson & Luef, for the appellee:
    The agreements to return the personal property and convey the real estate to the appellee, were declarations of trust. It is not necessary that the word “trust” or “trustee” should be used, to constitute the relation of trustee and cestui que trust. Hill on Trustees, *65; Perry on Trusts, sees. 82, 125; Kingsbury v. Burnside, 58 Ill. 310; Crawford’s Appeal, 61 Pa. 52.
    A trust may be proved by parol averments and declarations. Hill on Trustees, *55, 56; Perry on Trusts, sec. 86.
    The evidence of the oral declarations of the parties establishes the relation of the trustee and cestui que trust. It was not secret. It was not concealed from the public. It was openly declared by both father and son, and the property was openly treated as the property of the father.
    The relationship of trustee and cestui que trust having been established by written agreements, and by oral declarations made by the trustee, he will not be permitted to plead fraud, to defeat his trust agreements. Fast v. McPherson, 98 Ill. 496; Owen v. Owen, 23 N. J. Eq. 60; Ellison v. Ellison, 6 Ves. Jr. 662; Bunn v. Winthrop, 1 Johns. Ch. 329; Daves v. Otto, 35 Beav. 208.
    If there is no valid claim against the grantor, an agreement to reconvey may be enforced, although the transfer was made to defeat an anticipated suit against him. Damon v. Damon, 4 Ala. 521; Boyd v. De la Montague, 73 N. Y. 498; Daves v. Otto, 35 Beav. 208; Symes v. Hughes, L. R. 9 Eq. 475.
    The claim of the wife of the appellee, if she has any against him, deserves no consideration by a court of equity in Illinois. Whatever the character of the assignment of August 27, 1885, the trust agreement “to surrender back” the property on demand, was a contract founded on sufficient consideration to entitle the appellee to recover. This agreement was acted upon, and subsequent agreements .and contracts were in harmony with it, and expressly recognized the appellee as the beneficial owner of all the property. Parker v. Tiffany, 52 Ill. 286; Songer v. Partridge, 107 id. 529 ; Matthews v. Bank, 43 Me. 265.
    When a debtor deposits personal property in the hands of another, as bailee, with a view fraudulently to protect it from his creditors, such bailee can not avail himself of the fraud to defeat an action brought against him by the debtor for the .recovery of such property. Gowen v. Gowen, 30 Mo. 427; Parker v. Tiffany, 52 Ill. 286.
    If the agreement “to surrender back” the personal property, and the agreement to convey the real estate, were not declarations of trust, then we contend that the complainant would be required to perform the contracts, because there was ample consideration for the agreements, and the contracts were valid between the parties, and the defendant could not plead fraud to which he was a party, to defeat his own contracts, founded upon an expressed and valuable consideration. He would be estopped to deny the validity of his contracts by showing his own fraud. Dyer v. Homer, 22 Pick. 253; Harvey v. Varney, 98 Mass. 118; Findley v. Cooley, 1 Black, 262; Nichols v. Patten, 18 Me. 229.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The Appellate Court, in its opinion filed on reversing the decree of the Superior Court, concurred in the conclusion reached by the Superior Court, that the conveyances and assignments in controversy were conceived and executed by the present appellee, of his own motion, for the purpose of preventing his wife from obtaining maintenance and support from his property. We have carefully examined the evidence preserved in the record, and we have no doubt of the correctness ■ of that conclusion. In our opinion, the allegations of the bill ' are unsupported by the evidence, and it might be sufficient to dismiss the bill for that reason, without considering any other. See White v. Morrison, 11 Ill. 361; McKay v. Bissett, 5 Gilm. 499; Jackson v. Miner, 101 Ill. 550; Baldwin v. Campfield, 4 Halst. Ch. 891. We shall, however, not rest our decision ' on that ground alone.

The fourth section of our statute of “Frauds and Perjuries” makes void every gift, grant, conveyance, assignment or trans- • fer of or charge upon any estate, real or personal, * * * made with the intent to disturb, delay, hinder or defraud creditors or other persons,” etc. (Rev. Stat. 1874, chap. 59.) If ' the wife be not, technically, a “creditor,” she surely comes within the language “other persons,” and she is, obviously, as much injured by such a conveyance as any creditor can be. The same or equivalent language has been held to apply to the "wife, in the following eases: Bails v. Bails, 1 Cold. (Tenn.) 287; Reynolds v. Vance, 1 Heisk. (Tenn.) 344; Killinger v. Reidenbauer, 6 S. & R. 531; Boslaugh v. Boslaugh, 68 Pa. St. 499; Brewer v. Connell, 11 Humph. 500; Jenny v. Jenny, 24 Vt. 324; Gilmore v. Hutchinson, 120 Mass. 271; Jiggits v. Jiggits, 40 Miss. 714; Green v. Adams, 59 Vt. 602; Johnson v. Johnson, 12 Ky. Court of App. 485. See, also, Bump on Fraudulent Conveyances, 515.

El Draper v. Draper, 68 Ill. 17, we held that a conveyance, after bill filed for divorce and alimony, with intent to deprive the wife of alimony, was fraudulent, and should he set aside; and this, by necessary inference, recognizes that the wife is within the contemplation of the statute.

The instrument executed on the morning of the 27th day of August, 1885, is, upon its face, plainly fraudulent, in that it attempts to secure the use of the property to appellee to the exclusion of all others,—whether creditors or others having claims upon him. Power v. Alston, 93 Ill. 587; Annis v. Bonar, 86 id. 128; Truitt v. Griffin, 61 id. 26; Mitchell v. Sawyer et al. 115 id. 650; Moore v. Wood, 93 id. 451. And the same is, in effect, the character of the instrument hearing date September 30, 1885.

But assuming that the several assignments and conveyances contain nothing, upon their faces, to condemn them, and that in the papers subsequently executed there is a trust declared in behalf of appeEee, which, upon its face, discloses nothing to render it illegal, the question arises, is it competent for the defendant to show that the several assignments and conveyances were, in fact, made to prevent the wife of appellee from obtaining maintenance and support from his property, and that the papers declaring the trust were executed secretly, and knowledge thereof withheld from the public, to enable appellee to re-assert his ownership of the property after having accomplished the purpose of the assignments and conveyances. It seems to be thought by counsel for appellee that Fast et al. v. McPherson, 98 Ill. 496, requires an answer in the negative. It is clear that such a view results from a misapprehension of the point actually in controversy in that ease. It was there charged that Dexter had held the property in secret trust, in fraud of the creditors of Mrs. McPherson. But he had executed his trust by conveying the property,'by the direction of .the agent of Mrs. McPherson, to Fast, and Fast made a formal public declaration, in writing, that he held in trust. The principle applied is well sustained by authority. “Thus, where an act, though the result of an unlawful contract, is itself lawful, it may form the consideration for a lawful agreement, as, for instance, the actual transfer of stock, the agreement to do which was illegal. Similarly, a trustee into whose hands money is paid on account of a third person, can not set up the illegality of the trust under which the money was so paid, though the cestui que trust could not have enforced his right against the payer directly, as in that case he could only have got the money through the illegal agreement.” Fry on Specific Performance, (2d Am. ed.) p. 215, see. 313. See, also, ibid, ante, sec. 312.

This court, in Miller v. Marckle, 21 Ill. 152, committed itself to the doctrine that it is competent to go behind the language of a writing, and show that the real purpose of, its execution is to hinder, delay and defraud creditors, in violation of the Statute of Frauds and Perjuries,—and this in behalf of the party ostensibly bound by the instrument, and to defeat a suit for its enforcement. The doctrine is re-asserted in Ryan v. Ryan et al. 97 Ill. 38, and indirectly recognized in Dunaway v. Robertson et al. 95 Ill. 419.

In Nellis v. Clark, 20 Wend. 24, and in Smith v. Hubbs, 1 Fairf. (Me.) 71, cited with approval and relied upon in Miller v. Marckle and Dunaway v. Robertson et al., the point was raised, and insisted on in argument, that the defense that the instrument was executed in violation of the Statute of Frauds and Perjuries, can only be allowed where the facts showing it must necessarily make a part of the plaintiff’s or complainant’s proof; but it was disallowed, and expressly ruled otherwise.

We concede that the ruling in some States is different from that in this court in the cases to which we have referred; but our cases are not without authority or reason, and the question must be regarded to be settled, here, as they declare. In addition to the cases cited in Miller v. Marckle, the following may be referred to as sustaining like views: Walton v. Tursten, 49 Miss. 569; Chapin v. Rease, 10 Conn. 69; Murphy v. Hubert, 16 Pa. St. 50; Schenck v. Hart, 32 N. J. Eq. 774; Goudy v. Gebhart, 1 Ohio St. 262; McQuade v. Rosencranz, 36 id. 442; Inhabitants of Canton v. Inhabitants of Dorchester, 8 Cush. 525.

It is argued that the fact that a declaration of trust is in writing, prevents its being secret. If, as we have before herein intimated, the purpose of this trust, as disclosed by the instruments relied upon as proving it, is, upon its face, to reserve the use of the property to appellee while placing it beyond the reach of others having a legal right, apart from such transfer, to resort to it, this is not important. But we do not think the question of the secrecy or the publicity of the trust is affected by the circumstance of whether it was created by word of mouth, only, or by writing. That affects simply the question of proof. If the trust affect lands, it must be in writing. (Bev. Stat. 1874, chap. 59, sec. 9.) But, manifestly, a trust may be public, and yet be created by word of mouth, only. Coke says, in Twyne’s case: “And therefore, reader, when any gift shall be to you in satisfaction of a debt, by one who is indebted to others also: 1. Let it be made in a public manner, and before the neighbors, and not in private, ” etc. Had he understood that a writing would be conclusive of this question, he would undoubtedly have added, after the words “in private,” “or let a memorandum thereof be made in writing,” etc. And it is quite as manifest that a trust, though expressed in writing, may be secret, — as, if the fraudulent grantee or assignee, without the knowledge of, any one other than the fraudulent grantor or assignor, execute a writing declaring the trust, and hand it to the fraudulent grantor or assignor, and he thereafter keep it secretly in his own possession. The writing may be as effectually hid from the world at large, as is the memory of the fact not reduced to writing. The writings here relied upon were not placed upon record. They were retained in the pocket-book of appellee, and they were completely secreted from all but him and appellant,— and so the trust they declare is a secret trust.

We are not unmindful, in this connection, that it is competent, in the ease of a fraudulent conveyance or assignment, for the parties thereto to subsequently make a new and independent agreement, for a sufficient valuable consideration, whereby the grantee or assignee shall be obligated to hold the property in .trust for the grantor or assignor, as held in Parker v. Tiffany, 52 Ill. 286, and Songer v. Partridge, 107 id. 529. (See, also, Roberts on Fraud. Con. p. 495, sec. 10.) But it is manifest such agreement must be open and notorious, and made in good faith, to establish a trust in the property, for otherwise it would be but attempting to create anew a secret trust, already condemned by the statute.

What is here relied upon as a new agreement creating a trust between these parties, is an agreement of which the public knew nothing, which the appellee kept concealed in his pocket-book, and which he was under no obligation to observe unless he chose to do so, and which he himself wholly ignored and disregarded in the instrument he executed in January or February following, and dated September 30, 1885. If the first trust was secret, this one was clearly so. Not only was knowledge of it kept from the public, but it does not appear that any right was attempted to be asserted by virtue of it. In truth, we have the impression, from a careful reading of the evidence, that the execution of these several papers was but an effort to guard against dangers suggested by new fears that appellee’s wife might reach his property, as excited from time to time. Appellee seems to have been a passive instrument all the time, and, when acting at all, acting only and strictly in obedience to appellant.

An objection is urged that the Superior Court erred in permitting Cox, an attorney at law, to testify to what appellee said to him in respect to his purpose in making the assignments, conveyances, etc., to appellant. The objection is not tenable. Ho matter of confidence, as between appellee and Cox, was testified to. Cox was the attorney of appellant, not of appellee; and, at most, the case is not different from Lynn v. Lyerle, 113 Ill. 128, where it was held, that if two parties go together to an attorney, and make statements to him in the presence of each other, they are not confidential communications and therefore privileged.

The contention that the court erred in not requiring the parties to interplead on the petition of Hutchinson & Luff, is not tenable. Hutchinson & Luff,—the parties injured, if any, by that ruling,—are not before us. They neither appealed nor sued out a writ of error. We can only consider the case as it was before the Appellate Court.

The judgment of the Appellate Court is reversed, and the decree of the Superior Court is affirmed. Appellant will recover his posts in the Appellate Court as well as in this court, to be taxed on the certificate of the clerk of the Appellate Court.

Judgment reversed.


author: Mr. Justice Shops

text:
    Joseph Oswald v. Peter Wolf.

      Filed at Ottawa November 15, 1888.

    1. Appeal—what matters to be considered—on appeal from Appellate Court. An appeal from the Appellate Court brings to this court only such matters as might lawfully have been considered in that court, and when that -court has dismissed the appeal to it for want of jurisdiction, that question only can be considered in this court. If this court finds that the Appellate Court had jurisdiction, correct practice requires that the order of dismissal be reversed, and the cause remanded to that court, with instruction's to find upon the issues of fact and render final judgment on the errors assigned, otherwise this court will affirm the order of dismissal.
    2. Same—want of jurisdiction—dismissal—as to any further action. Where the Appellate Court has no jurisdiction of an appeal, all it can do is to dismiss the same; and no mandate can issue from that court to the court below, and any attempt to issue the same will be void for want of jurisdiction.
    3. Same—whether freehold involved. Where the owner of land claims title in fee to the right of way over an adjoining tract, and files a bill to enjoin the defendant from interfering with its use, and to compel him to remove obstructions thereon, and his claim of title is denied by the defendant, a freehold will be involved, and the Appellate Court will have no jurisdiction of an appeal by the defendant from a decree granting the relief sought.
    4. An estate of inheritance in real property, whether it be a corporeal or an incorporeal hereditament, is a freehold estate.
    5. Same—former decision. The language employed in Lucan v. Cadwallader, 114 HI. 285, is broad enough to include inheritable easements or easements for the life of the grantee, and in holding that a freehold is not involved therein, is incorrect, and, in so far as inconsistent with the rule now announced, is not to be regarded as authority.
    6. Easement—grant of right of way—whether a mere easement, or a grant of the land. The owner of a ten-acre tract of land conveyed the west one-third thereof in fee, and for the benefit of the land so conveyed, and as incident thereto, a right of way fourteen feet wide over the remainder of the tract, to a public street: Held, that the grant of the strip described as a right of way was not of the land,-but created an easement therein for the land conveyed, and a servitude upon the land over which it was granted.
    7. Same—whether in gross, or appurtenant. It will never be presumed that the grant of a right of way, or easement, is in gross, when it can fairly be construed to be appurtenant to some other estate.

      8. Such an easement is an incorporeal hereditament, though imposed upon corporeal property, and consists simply of a right which, in its nature, is intangible, and incapable of being the subject of livery. It lies only in grant by deed. It is not divisible from the estate to which it is appurtenant, and passes by the conveyance of the principal estate, as an appurtenance thereof.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding.
    Mr. Perry A. Hull, for the appellant.
    Mr. Elmer W. Adkinson, for the appellee.
   Mr. Justice Shops

delivered the opinion of the Court:

This was a hill in chancery, filed by appellee, Wolf, against appellant, in the Superior Court of Cook county. The bill alleges, in substance, that in December, 1855, one Peter Duffy, being the owner in fee 'of a certain tract of land in Cook county, lying on the west side of and adjoining Halsted street, containing ten acres, conveyed to the complainant the west one-third of said tract, and also, at the same time and by the same deed, conveyed to the complainant the right of way over a strip of land fourteen feet in width, particularly describing it, and running from said west one-third of said tract, east through the center of the remaining two-thirds of said tract, to Halsted street; that the complainant, in pursuance of said conveyance, entered into possession of said west one-third of said tract, and has ever since continued in possession thereof; that ■ the defendant afterward became possessed of the remaining two-thirds of said tract, subject to the complainant’s right of way over the same, and has recently erected obstructions upon 'said right of way, so as to render it "impossible for complainant to use the same. The bill prays that the defendant be decreed to remove all obstructions from said right of .way, and permit the complainant, and those claiming under him, an unobstructed passage over the same, and to forever maintain said right of way in condition to be used by the complainant and those claiming under him, and a general prayer for relief. The defendant, by his answer, among other things, denied and put in issue the complainant’s title to said right of way, and setting up title and exclusive right of possession in himself to the strip of land upon which the same is claimed to be located.

The cause coming on to be heard, on pleadings and proofs, the court rendered a decree establishing said right of way in the complainant, and perpetually restraining the defendant from obstructing the same, and from hindering and impeding the uninterrupted use of the same by the complainant,- his agents, servants or assigns, and also requiring the defendant, by a certain day, to remove the obstacles from said right of way, in such manner as to enable the complainant to use and enjoy the same. On appeal by the defendant to the Appellate Court, an order was entered by that court, “that said appeal be dismissed out of this court for want of jurisdiction,” and for costs. This appeal is prosecuted from that order.

The cause having been certified to this court as involving questions of law of such importance as that they should be passed upon by the Supreme Court, two questions only remain for our consideration.

It is manifest, from an inspection of the record, that the ■sole ground for the entry of the order dismissing the appeal in the Appellate Court was that a freehold was involved, and that court was therefore without jurisdiction. By the 8th section of the act to establish Appellate Courts, amended June 6, 1877, (Session Laws, 1887, p. 156,) it is provided in what cases appeals to or writs of error from the Appellate ■Courts can be prosecuted, and cases involving a freehold are expressly excluded, while hy that section of the statute and the 88th section of the Practice act, as amended June 3,1879, it is provided that appeals from and writs of error to trial courts, in all cases, in which a freehold is involved, shall be taken directly to the Supreme Court. If, therefore, a freehold was involved in the determination of the errors assigned upon the, record, the appeal to the Appellate Court could confer no jurisdiction upon that court, and its order was properly entered.

The question first for consideration is, what does this appeal bring to this court for its determination ? It is contended that '“if this court should hold that a freehold is involved, then the case is properly before this court for determination on all the questions of law and fact involved.” The point sharply made is, that the order of the Appellate Court dismissing the appeal left nothing to be done but to carry into effect the judgment of the court below, and that therefore the judgment of the Appellate Court was final, and an appeal upon the merit's is ■allowed by the statute.

The statute referred to (Eev. Stat. chap. 110, sec. 90,) is as follows: “In all criminal cases, and in all cases where a franchise or freehold or the validity of a statute is involved, and in all other cases where the sum or value in controversy shall exceed one thousand dollars, ($1000,) exclusive of costs, which phall be heard in any of the Appellate Courts upon errors assigned, if the judgment of the Appellate Court be that the O order, judgment or decree of the court below be affirmed, or if final judgment or decree be rendered therein in the Appellate Court, or if the judgment, order or decree of the Appellate Court be such that no further proceedings can be had in the court below except to carry into effect the mandate of the Appellate Court, any party to such cause shall be permitted to remove the same to the Supreme Court by appeal or writ of error,” etc.

The contention of counsel is predicated upon the last clause of the section as quoted, providing for appeals and writs of error where the order of the Appellate Court is such that no further proceedings can be had in the court below except to' carry into effect the mandate of the Appellate Court. It is. apparent that no mandate issued, or, if that court was without jurisdiction, could issue, from the Appellate Court to the court below. Any attempt to make such an order, thereby transcending the limit of-its jurisdiction, would be void. (Kenney, Exrx. v. Greer, 13 Ill. 432.) Nor was the order entered by the Appellate Court a final order in the cause, or made in a case “heard in the Appellate Court upon errors assigned,”' within the contemplation of the statute. What that court did, was, by its order, to refuse to entertain the appeal for any purpose, or to make any order in the cause, final or otherwise.

This court, exercising its apipellate jurisdiction, sits, in cases; of appeals, to review the final orders, judgments and decrees of the tribunals from which the appeal is prosecuted, upon the record there made, and we have repeatedly held that nothing can be considered on appeal that was not properly presented for adjudication in the lower court,—that nothing was brought up by the appeal that was -not before the lower court for its determination. If the Appellate Court had no jurisdiction to. hear the case on errors assigned, it could only consider the question of jurisdiction, and enter, as it did, an order dismissing the appeal, and for costs of that court, against the party that had wrongfully intruded therein.

This appeal would bring to this court only such matters as might lawfully have been considered in the Appellate Court by virtue of the appeal to that court, and therefore only the question of jurisdiction can be considered here. If it be found that no freehold is involved, correct practice would require that the order of dismissal be reversed, and the cause remanded to the Appellate Court, with instructions to find upon the issues of fact, and render final judgment upon errors assigned. (Ottawa, Oswego and, Fox River Valley Railroad Co. v. McMath, 91 Ill. 104.) If a freehold is involved, this court is powerless to do more, on this appeal, than to affirm the order of the Appellate Court.

The view here expressed is not in conflict with International Bank v. Jenkins et al. 104 Ill. 143, or Gage v. Seales et al. 100 id. 218. In those cases the judgments and orders of the Appellate Court were upon the merits, and necessarily final. The latter ease, it is true, was held to involve a freehold, but the question of whether the appeal would lie from the trial court to the Appellate Court, or from that court to this, or what questions would be presented on appeal to this court, was not presented or determined.

The remaining question will be briefly considered. The complainant claims title in fee to the right of way over defendant’s land. His title thereto is directly put in issue, and established by the decree. It is clear that the right of way, and whatever estate complainant had therein, is involved. Looking to the allegations of the bill, and the evidence offered to sustain them, it is seen that complainant’s grantor, claiming to own the ten-acre tract of land described in the bill, conveyed to complainant the west one-third of said tract in fee, and for the benefit of the land so conveyed, and as incident thereto, the right of way in question over the remaining two-thirds of said land, from the said west one-third, to a public street. The grant of the strip described as right of way was not of the land, but created an easement therein in the land of complainant, and a servitude upon the land over which it was granted. (Washburn’s Law of Easements and Servitudes, 26.) It is clear that the easement here granted was appurtenant to. the estate of complainant, for, independently of the clear implication to that effect from the nature of the grant, it will never be presumed that the grant is in gross, “when it can fairly be construed to be appurtenant to some other estate.” (Ibid. 27-36.) “These easements,” it is said, “are strictly incorporeal hereditaments, though imposed upon corporeal property, and consist simply of a right which is, in its nature, intangible, and incapable of being the subject of livery.” (Washburn on Beal Prop. 300; 3 Kent’s Com. 401-419.) Hence it is said: “It does not lie in livery, but in grant, and a freehold interest in it can not be created or passed otherwise than by deed.” Hawley v. Shipman, 5 B. & C. 221. See 2 Blackstone’s Com. 104-237; 1 Preston on Estates, 13.

These incorporeal and intangible rights in or growing out of land, have applied to them the same idea of duration or quantity of estate that is applied to corporeal hereditaments. They are not divisible from the estate to which they are appurtenant, and pass by conveyance of the principal estate as “appurtenances” thereof. ’(3 Kent’s Com. 420; 2 Washburn on Real Prop. 271.) The duration of the estate, or the time for-which the enjoyment is to continue, forms the quantity of the estate, -and hence, if the grant be of an estate of inheritance, either in hereditaments corporeal or incorporeal, a fee is taken; if for the life of the grantee, only a life estate would be granted. Preston on Estates, 31; 2 Washburn on Beal Prop. 271.

It is said by Blackstone, (book 2, p. 106,) that taking the word “fee” as meaning an estate of inheritance, “it is applicable to, and may be had in, any kind of hereditament, either corporeal or incorporeal.” Of the former, however, the grantee is said to be seized “in his demesne as of fee, and of the latter that he is seized as of fee,” only,—the reason of the distinction being, that while the owner of the easement may own the same, “to himself and his heirs, as fully as he could the land,” yet he has no dominion over the land itself, but only the right of subjecting it to the servitude granted. Here, the easement was appurtenant to the estate of complainant in the land conveyed. The grant was by deed to complainant, his heirs and' assigns, forever; habendum to him, his heirs and assigns, forever. It is clear that an estate of inheritance was granted in the right of way, and that complainant took the same in fee.

An estate of inheritance in real property; whether it be a corporeal or incorporeal hereditament, is a freehold estate. (4 Kent’s Com. 24; 2 Washburn on Real Prop. 271; 1 Preston on Estates, 201.) Mr. Preston (at p. 214,) says: “Hereditaments which are incorporeal, as well as hereditaments corporeal, are the objects of this doctrine, and admit of the application of this term., So long as an estate of freehold subsists in the property, that estate will require the denomination of a freehold interest, without any regard to the subject of property in which the estate is subsisting.”

It follows, that a freehold is here involved, and that the order of the Appellate Court dismissing the appeal to that court was properly entered, and must be affirmed.

The cases of Lucan v. Cadwallader, 114 Ill. 285, and Eckhart v. Irons, id. 469, are not necessarily, from anything appearing in the reported cases, in conflict with the holding here. All estates of inheritance in hereditaments are freeholds; estates less than a freehold are chattel interests. The language employed in the former case is broad enough to include inheritable easements or "easements for the life of the grantee, and in holding that a freehold is not involved therein, is incorrect, and, in so^far as inconsistent with the views here expressed, is not to be regarded as authority.

Leave will be given appellant to withdraw the record filed herein, to be re-filed for the writ of error from this court, if he so desires.

Judgment affirmed.

Mr. Justice Bailey, having heard this case in the Appellate Court, took no part in this decision.