author: Mr. Justice Mulkey Mr. Justice Craig : Mr. Justice Shope :

text:
    George W. Cothran v. J. Alder Ellis et al.

      Filed at Ottawa May 9,1888.

    1. Wagers and wagering contracts—wagers at common law. At common law, wagers not against the interests or feelings of third parties, or which would not lead to the introduction of indecent evidence to enforce them, or which are not immoral or contrary to public policy, were enforceable by action, as valid and binding obligations.
    2. Same—wagering contracts—of their validity—dealing in “futures” or “options.” Under our legislation there can be no such thing as a valid wagering contract in this State, and he who advances money or other property to either of the contracting parties, to be used for such purpose, is equally guilty with the parties to the wager, and no action will lie against the borrower to recover it back.
    3. Dealing in “futures” or “options,” as they are commonly called, to be settled by the fluctuations of the market, is void by the common law, as being contrary to public policy, and as a crime against the State, etc.
    4. Appeal—reviewing facts—for what purposes this court may consider the evidence. While this court has no right to review the evidence for the purpose of determining whether it sustains the finding of the Appellate Court upon the controverted facts, yet such a review is proper when incidentally necessary to the determination of some question of law.
    5. So where exception to the ruling of the trial court upon a demurrer to the evidence, or a motion to exclude it from the jury, or to find for one or the other of the parties, this court will be bound to examine the evidence. And, also, when an instruction is excepted to on the ground there is no evidence upon which to base it, this court will have to examine the evidence to see if the exception is well taken.
    6. And when the question is made in the trial court whether there is evidence tending to prove the plaintiff’s cause of action or a ground of defense, the ruling may be re-examined in this court, as presenting a question of law; but when not made in the trial court, this court can not look into the evidence to see whether it does tend to prove a given issue.
    7. Same—and herein, what will constitute a finding of the facts in the trial court. Whether evidence tends to prove an issue, is a question of law; but when admitted, the jury, under the instructions of the court, are to determine its force and effect on the issue; and whether the evidence is good, bad or worthless, their finding, based upon it, will be a finding of the facts involved in the issue, no matter whether the finding is justified by the evidence or not.
    8. And where the defendant in an action upon a promissory note files special pleas, only, setting up the fact that the note was given upon a gambling contract, the burden of proof will be upon him; and if he offers no evidence in support of his pleas, it will be the duty of the jury to find the issues for the plaintiff, and such finding will be a finding as to the facts, and not reviewable in this court.
    9. Pleading and evidence—omission to give in evidence the instrument sued on. On the trial of a suit upon a promissory note, the execution of which was not questioned, there being special pleas, only, going to the legality of its consideration, the note was present in court and identified, but not formally read to the jury: Held, that the failure of the record to show the giving of the note in evidence was not any ground for a reversal.
    10. Practice—directing what the verdict shall be. In an action upon a promissory note, where the proof shows no defense, the plaintiff is entitled to have the jury instructed to render a verdict against the defendant for the amount of the note, and it is error to refuse such an instruction.
    11. Same—demurrer to evidence—motion to exclude. Where the evidence fails to show any defense to a cause of action, the plaintiff may demur to the defendant’s evidence, or ask the court to exclude it from the jury; and if the court refuses to allow the demurrer or to exclude the evidence, its ruling, if excepted to, may be reviewed by this court.

      Writ of Error to the Appellate Court for the First District; —heard in that court on writ of error to the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Mr. Francis A. Riddle, for the plaintiff in error.
    Messrs. Trumbull & Robbins, and Mr. S. S. Gregory, for the defendants in error.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 23d day of June, 1885, the defendants in error, J. Alder Ellis and Milton C. Lightner, brought an action of assumpsit in the Superior Court of Cook county, against George W. Cothran, on the following instrument:

“$10,000. Chicago, January 24, 1882.
“Ninety days after date, I promise to pay to the order of Smith, McCormick & Co. $10,000 at their office, with interest from date until paid, at six per cent, value received.
George W. Cothran.”

—Which was indorsed in blank by the payees, without recourse. To the declaration, which is in the usual form, the defendant interposed the plea of the general, issue, which was subsequently withdrawn, and nine special pleas. A demurrer was sustained to the eighth, and issues of fact were joined on the others. The issues being thus made up, the defendant took the burden of proof, with the right to open and close. The substance of the defense presented by the pleas is, in general terms, that Cothran was speculating on the board of trade in grain and provisions; that his operations were conducted through Smith, McCormick & Co., members of the board; that they made on his account divers so-called purchases and sales of produce, provisions, etc., resulting in great loss to him; that the pretended purchases and sales were all colorable, and mere devices to cover up gambling transactions and wagers on the run of the market; that they were violative of public morals, and in contravention of the Criminal Code of the State; that the note sued on was given, alone, for losses sustained by the defendant in these illegal transactions. The pleas present this defense with such variety of statement as to cover almost, if not quite, every conceivable illegal transaction contemplated either by the statute or the common law, and as there is no claim that they are not sufficiently broad in this respect, it would subserve no useful purpose to make a more particular statement of their general scope and contents. The trial in the Superior Court resulted in a judgment in favor of the plaintiffs for $12,460, which having been affirmed by the Appellate Court for the First District, the defendant brings the case here for review.

It is conceded that the plaintiffs hold the note sued on subject to all equities and defenses that could be made against it if the suit had been brought in the name of the payees. The question, therefore, in the trial court, was whether, under the proofs, the defendant was liable on the note to Smith, McCormick & Co., at the time of its transfer to the plaintiffs. Assuming the transactions set up in the pleas to be illegal, on the ground they were mere wagers respecting the grain and provision market, it is not important to inquire, with any degree of particularity, whether the case falls within the common law, which invalidates all contracts contrary to public policy, or whether it comes within the general statutory provisions against gaming, or whether it falls within the 178th section of the Criminal Code, which is directed exclusively against gambling in grain, stocks, etc., for the result would be the same in either case. On the other hand, if the transactions between the parties, as shown by the proofs, are not mere wagers, as alleged in the pleas, the judgment below is right, and should be affirmed.

By the common law, wagers not against the interests or feelings of third parties, or which would not lead to the introduction of indecent evidence to enforce them, or which are not immoral or contrary to public policy, were enforcible by action as valid and binding obligations. The tendency, however, of modern decisions is to enlarge the exceptions to the general rule which permits a recovery upon a wager, and some of the courts have gone so far as to deny the rule altogether. (Collamer v. Day, 2 Vt. 144; Amory v. Gilman, 2 Mass. 1; Babcock v. Thompson, 3 Pick. 446; Carrier v. Brannan, 3 Cal. 328.) And in most of the States where the courts have not by judicial decision brought about this desirable reform, the legislature has. Thus, it is declared in this State, by the 179th section of the Criminal Code, that “all promises, notes, bills, bonds, covenants, contracts, agreements, judgments, mortgages, or other securities or conveyances made, given, granted, drawn or entered into or executed hy any person whatsoever, where the whole or any part of the consideration thereof shall be for any money, property or other valuable thing, won by any gaming or playing at cards, dice, or any other game or games, or by betting on the side or hands of any person gaming, or by wager or het upon any race, fight, pastime, sport, lot, chance, casualty, election or unknown or contingent event whatever, or for the reimbursing or paying any money or property knowingly lent or advanced at the time and place of such play or bet, to any person or persons so gaming or betting, -or that shall, during such play or betting, so play or bet, shall be void and of no effect.” It is clear, from this section of the statute, without regard to the common law, there can be no such a thing as a valid wagering contract in this State, and that he who knowingly advances money or other property to either of the contracting parties, to he used for such purpose, is equally guilty with the parties to the wager, and no action will lie against the borrower to recover it back.

The 178th section above referred to provides, that “whoever contracts to have or give to himself or another the option to sell or buy at a future time any grain or other commodity, * * * shall he fined not less than $10 nor more than $1000, or confined in the county jail not exceeding one year, or both; and all contracts made in violation shall be considered gambling contracts, and shall be void.” According to the construction heretofore placed upon this section, the defense relied on, if satisfactorily established, would fall within its provisions. (Pearce v. Foote, 113 Ill. 228.) But leaving both sections of the statute cited entirely out of view, we are clearly of opinion that dealing in “futures” or “options,” as they are commonly called, to be settled according to the fluctuations of the market, is void, by the common law, for, among other reasons, it is contrary to public policy. It is not only contrary to public policy, but it is a crime,—a crime against the State, a crime against the general welfare and happiness of the people, a crime against religion and morality, and a crime against all. legitimate trade and business. This species of gambling has become emphatically and pre-eminently the national sin. In its proportions and extent it is immeasurable. In its pernicious and ruinous consequences it is simply appalling. Clothed with respectability, and entrenched behind wealth and power, it submits to no restraint, and defies alike the laws of God and man. With despotic power it levies tribute upon all trades and professions. Its votaries and patrons are recruited from every class of society. Through its instrumentality the laws of supply and demand have been reversed, and the market is ruled by the amount of money its manipulators can bring to bear upon it. These considerations imperatively demand at the hands of the courts of the country a faithful and rigid enforcement of the laws which have been ordained for the suppression of this gigantic evil and blighting curse.

The facts put in issue by the pleas, and upon which the rights of the parties depend, were clearly and distinctly alleged, on the one side, and denied on the other. The parties, in the presence and under the direction of the court, submitted evidence to the jury upon the issues thus formed,—one to prove the existence, and the other the non-existence, of the alleged facts. The jury found adversely to the appellant. Whether the evidence warranted the finding of the jury, presented another and distinct question, which the unsuccessful party had the right to have reviewed. He has availed himself of this right, first, by taking the opinion of the trial court, and secondly, that of the Appellate Court. Both these courts have found the facts the same way the jury did, and this would seem to be conclusive. It is urged, however, that there is no evidence to sustain these findings, and that this court must reverse the case for that reason, otherwise there would be a failure of justice. A moment’s reflection ought to demonstrate the fallacy of this position. It is not a question of right or abstract justice, but it is a question of jurisdiction and power in this court to review a decision of the Appellate Court upon the facts. The legislature, in its wisdom, has given the Appellate Courts of this State exclusive jurisdiction over such questions, subject to certain limitations not affecting this case, and hence there is a total want of power in this court to interpose. There is no hardship in this which is not encountered in every case where the Appellate Court makes a wrong decision and no appeal is allowed to this, or-when this court commits an error and there are no means of correcting it.

We might here dismiss this branch of the case without further remark, but for the fact it has been supposed that where there is no conflict in the evidence, and the proofs appear wholly insufficient to sustain the judgment of the trial court, this court, notwithstanding the affirmance of the judgment by the Appellate Court, may nevertheless reverse it, on the ground that the want or insufficiency of the evidence to support the judgment presents a question of law to be reviewed here. This position is unsound, in any view that may be taken of it. It is true, that whether a matter offered in evidence tends to prove an issue, presents, when challenged, a question of law for the determination of the court. But when once admitted, the jury, under the instructions of the court, are to determine its force and effect upon the issue submitted, and pass upon the issue itself as one of fact, and no review of it, by this or any other court, can change it to one of law. And whether the evidence is good, bad or worthless, the finding of the jury based upon it will be a finding of the facts involved in the issue, within the meaning of our statute, without regard to whether it is justified by the evidence or not; and if the jury have made a mistake, the ultimate power to correct it is conferred upon the Appellate Court, and not upon this.

By the 89th section of the Practice act, the legislature has declared that “the Supreme Court shall re-examine cases brought to it by appeal or writ of error, as to questions of law, only.” But it is said, that whether there is evidence tending to prove the plaintiff’s cause of action, or the defendant’s grounds of defense, presents a question of law for the determination of the court. That is true if the question is made. But suppose neither of the parties raises the question, and the court is not asked to make,—and in fact does not make,—any ruling upon it, is it not manifest this court could not pass upon it, except as an original question raised for the first time in this court ? And if it undertook to do so, is it not equally clear it would be exercising original and not appellate jurisdiction? To say this may be done, is to confound all distinction between appellate and original jurisdiction, and to utterly disregard the express words of the statute above cited. This court, it will be perceived, when we look to its grant of appellate jurisdiction, is authorized to “re-examine cases * * * on questions of law, only.” Is no significance to be attached to the word reexamine? How can this court, with any propriety of language, be said to re-examine a question, on appeal, which was not raised or passed upon by the lower court ? But outside of the significant language of the statute, it is clear the proper and only function of this court, sitting as a court of review, is to correct the errors assigned upon the record. What errors? Manifestly, errors alleged to have been committed by the lower court whose judgment is to be reviewed. The very form of an assignment of error, which is almost as old as the law itself, proves this.

The supposed hardships that might now and then occur in exceptional cases by adhering to these well settled rules of procedure, are more apparent than real, and would never happen at all except through the culpable negligence of counsel, for which the latter would be answerable to his client in damages. Take the case, for instance, of an action on a promissory note, to which the proofs show no defense whatever, nevertheless judgment is given for the defendant. When the evidence is all in, the plaintiff is entitled to have the jury instructed to render a verdict against the defendant for the amount of the note, and if the court, when asked, should refuse to so instruct, it would be reversible error. But this right, like most others arising in the progress of a trial, may be waived,—and would be, by failing to have the court pass on the question. Or the plaintiff might formally demur to the defendant’s evidence, or ask the court to exclude it from the jury; and if the court refused to allow the motion or sustain the demurrer, as the ease might be, its ruling, if excepted to, would be reviewable here. So if the court should give an instruction directing the jury to find for the defendant upon any hypothesis, and the plaintiff should except to it, the same question would be raised, and this court would reverse the judgment on the ground it is always error to give an instruction where there is no evidence upon which to base it. If, however, the plaintiff should close his eyes to all these modes of raising the question, either of which would entitle him to have it reviewed in this court, he would have no more cause to complain than one who loses his case here, because his attorney, in the court below, failed to take an exception to some erroneous ruling on the trial, which, if taken, would have been cause for reversal in this court,—a matter of almost every-day occurrence. While this court has no right, as we have seen, to review the evidence for the purpose of determining whether it sustains the finding of the Appellate Court upon the issuable or controverted facts, yet such a review is entirely proper when incidentally necessary to the determination of some question of law, and it is the constant practice of this court to do so. Thus, where an exception is taken to the ruling of the trial court upon a demurrer to the evidence, or a motion to exclude it from the jury, or to find for one or the other of the parties, this court would be bound to examine the evidence in order to determine the propriety of the ruling of the court below. So where an instruction is excepted to, on the ground that there is no evidence upon which to base it, this court will have to examine the evidence in order to determine whether the exception is well taken.

The view here presented conforms to the rulings of this court upon analogous questions, and is in complete accord with the common law rules of pleading and practice, which, in the main, are a part of the positive law of the State. Not only so, but this court, if such a thing be possible, is irrevocably committed to such view by oft-repeated decisions directly upon the question, as is abundantly shown by the following cases: Wallace et al. v. Goold, 91 Ill. 15; Bridge Co. v. Comrs. of Highways, 101 id. 518; Capen et al. v. De Steiger & Co. 105 id. 185; Edgerton v. Weaver et al. id. 43; Baird et al. v. Trustees of Schools, 106 id. 657; Brown v. City of Aurora, 109 id. 165; Hardy v. Rapp, 112 id. 359; Indianapolis and St. Louis Railroad Co. v. Morgenstern, 106 id. 216 ; Chicago, Burlington and Quincy Railroad Co. v. Bell, 112 id. 360; Williams v. Forbes, 114 id. 167; Insurance Co. v. Barrel Co. id. 99; Rogers v. Chicago, Burlington and Quincy Railroad Co. 117 id. 115.

We can not stop to call attention to the emphatic and unequivocal language of the court in the .cases cited, for the purpose of demonstrating its position on this question, for to do so would extend the discussion beyond all reasonable limits. Whatever may be found in any of the cases not in accord with what is here said, is not approved, and must be regarded as overruled.

The facts alleged in the defendant’s pleas, and put in issue by the plaintiffs’ traverse, are the only controverted facts in this case, and the onus probandi was upon the defendant. If the latter had offered no evidence at all, it would not have been necessary for the plaintiff to offer any, for the jury are always bound to find the facts against the party having the burden of proof, if he offer no evidence in support of the issues. Nevertheless, the finding of the facts, under such circumstances, is, in legal effect, precisely the same as in any other case. The facts as found, whether with or without evidence, can be the only basis of relief, so long as the finding remains in full force and effect. Accepting, then, as we do, the decision of the Appellate Court as a finality upon the controverted facts raised by the issues, it will be necessary to briefly advert to the evidence, for the purpose of passing upon the questions of law arising on the record.

The dealings between Cothran and Smith, McCormick & Co. commenced on the 1st day of November, 1881, and closed on the 24th of February, 1882. During this time,—a period of three months and twenty-four days,—the latter rendered to him thirty-nine statements, showing the number .of purchases and sales of grain, provisions, etc., purporting to have been made by them on his account. They show, all together, one hundred and forty-four sales, and exactly the same number of purchases. For every sale there appears a purchase of a like article or commodity, corresponding exactly in quality and quantity with that of the sale. Each sale, with its corresponding purchase, often appears to have been made on the same day, and, as a general rule, was promptly followed by a statement of the transaction, in which appellant was charged or credited, as the case might be, with the difference between the buying and selling price. These statements do not, in a single instance, give the name of the party with whom appellant is alleged to have been dealing. Neither is this shown by any of the books of Smith, McCormick & Co. now in existence ; nor are any of the members of that firm, or any one else, so far as this record shows, able to name a single buyer or seller with whom that firm was dealing on appellant’s account. It is true, McCormick states that the company did have books showing the parties with whom they were dealing on Cothran’s account, but it is claimed that these books were either destroyed by the firm or sold as old paper. This claim of the willful destruction of the books, to say the least of it, is far from strengthening the ease of appellees. Omnia præsumuntur contra spoliatorem. • The above mentioned statements, for the short period stated, show sales and purchases on appellant’s account of 5000 barrels of pork, 2500 tierces of lard and 1,850,000 bushels of grain, of the total value of $2,504,825.75, on which transactions Cothran paid Smith, McCormick & Co., in margins, $7500. On the evening of the 23d of January, 1882, the latter, in the technical language of the trade, “closed out all of his deals,” and on the following morning there was a settlement between them of all transactions up to that date. The account, as stated, after giving appellant the benefit of all credits, showed a balance against him of $25,881.25, which, for purposes of payment, was divided into three installments, and Cothran gave his notes therefor, one of which is the note now in suit. The appellant is a lawyer by profession, and notwithstanding his alleged heavy purchases from unknown sellers, he swears he never owned a bushel of wheat in his life. During the time these transactions were going on between him and Smith, McCormick & Co., it is not pretended that he received from them a cent of money, or any grain, property or produce alleged to have been purchased by him. Nor is it claimed that he ever delivered, or was called on to deliver, any produce or property charged to have been sold by him, nor was he ever offered or tendered anything claimed to have been purchased by him. McCormick, on being asked whether he had ever delivered any property bought by his firm, to Judge Cothran, replied: “I don’t know whether we did or not,—that was a matter that rested entirely with him, as to whether he would receive property or not." In the language, of the same witness, appellant was always “on the option side of the deal.” No cash produce was ever bought or sold. All sales and purchases provided for delivery at a future day. That time, however, never even once arrived in the whole two hundred and eighty-eight transactions, and from the uniform method of conducting the business, it is almost an irresistible conclusion that it was not contemplated or intended by either of the parties that it ever should arrive.

Such is the general outline of the case made by the evidence. Much detail might be added which would still strengthen the case against appellees; but that is not important, as we have no power to relieve the appellant from what we may regard as an improper finding of the facts by the Appellate Court.

We come now to the questions of law presented by the record. Numerous exceptions were taken to plaintiffs’ instructions, but we can not stop to consider them in detail, or answer the arguments of counsel respecting them. Assuming that there is sufficient evidence upon which to base them, suffice it to say, in general terms, we see no substantial objections to them. Neither do we think the court committed any material error in its rulings upon the defendant’s instruction.

The only question about which we have had any serious doubt is, whether the evidence favorable to appellees was sufficient to warrant the court in submitting the cause on their behalf, upon instructions of any kind. Appellant’s, counsel earnestly insists that there is no conflict in the evidence,— that it fully sustains the defense, and that there is no proof upon which the contrary hypothesis can rest. If this claim is well founded, it is clear the trial court erred in submitting the case on instructions for appellees, and this, as just remarked, is the controlling question in the case. We have carefully examined the evidence in its hearing upon this aspect of the case, and however much dissatisfied we might be with the finding of the lower courts upon the facts in issue, we are unable to say, with appellant, there is no evidence in the record to support the finding in favor of appellees. Upon a very careful consideration of the evidence submitted in their behalf, we think, when taken by itself,—and that is the proper way to test the question,—it is sufficient to sustain the finding of the lower courts.

We do not think there is anything in the point that the note sued on was not formally read to the jury. Subject to the, matter set up in the pleas, the cause of action was confessed. The note was present in court, and was identified in the presence of the jury, and its amount stated, and there is no claim, in the pleadings or otherwise, that anything was ever paid upon it. This, we think, was sufficient to warrant the jury in assessing the damages at the face of the note, with interest, as they did.

The judgment will be affirmed.

Judgment affirmed.

Mr. Chief Justice Sheldon concurs in the result, but not in all that is said in the opinion.

Mr. Justice Craig :

I concur in affirming the judgment, but I am not satisfied with the reasoning in the opinion.

Mr. Justice Shope :

I dissent from the finding and conclusion reached by the majority of the court.


source: Caselaw Access Project

author: Mr. Justice Shope

license: Public Domain

text:
    Matthew Johnson v. Anna C. Johnson.

      Filed at Ottawa May 9, 1888.

    1. Husband and wife—separate maintenance—what will justify the wife in living apart from her husband. To maintain a bill by a wife against her husband for separate maintenance, the former must show, not only that she had good cause for living separate and apart from her husband, but also that such living apart was without fault on her part.
    2. The fault on the wife’s part contemplated by the statute, is a voluntary consenting by her to a separation, or such failure of duty or misconduct on her part as materially contributed to a disruption of the marital relation.
    3. If the wife leaves her husband voluntarily or by consent, or if her misconduct has materially induced the action on the part of the husband upon which she relies as justifying the separation, she will not be without fault on her part, within the meaning of the law.
    4. While it is not the policy of the law to encourage a husband and wife in living apart, yet a wife who is not herself in fault, is not bound to live and cohabit with her husband if his conduct is such as to directly endanger her life, person or health, nor when he has pursued a persistent, unjustifiable and wrongful course of conduct toward her, which will necessarily render her life miserable, and living as his wife unendurable.
    5. Mere incompatibility of disposition, occasional ebullitions of passion, trivial difficulties or slight moral obliquities, will not justify the wife in separating from her husband and claiming a separate maintenance.
    6. If the husband voluntarily does that which compels the wife to leave him, or justifies her in so doing, it may be inferred that he intended to produce that result, and the wife’s leaving, in such ease, would be desertion on his part, and not on the part of the wife.
    7. Same—offer on the part of the husband to resume the marital relation. If the husband, after he has forced his wife to leave him, by harshness and cruelty, offers to take her back, support and give her proper treatment, the offer must be made in good faith, and under such circumstances as will give reasonable assurance of amendment, or it will not bar her of a right to separate maintenance. When the offer to take the wife back is conditioned that on investigation she shall prove not to have been unchaste, and requiring time to investigate that fact, thereby throwing a doubt upon her virtue, she will be justified in refusing such offer and proceeding with her suit. She will not he bound to return and again be mistreated, or at his house live apart from him.

      8. Same—as to the amount of the allowance. The allowance to a wife for her separate maintenance is to be determined by the exercise of the judicial discretion of the court, having reference to the wealth of the defendant, the condition in life of the parties, and all the circumstances of the case; and this court will not interfere, except when it is clearly apparent the allowance made is unjust.
    9. Same—solicitor’s fee—of its allowance. In a suit by a wife against her husband for separate maintenance, the court may, in the exercise of a judicial discretion, allow her reasonable solicitor’s fees, which allowance should be made in view of the service rendered or to be rendered, and the ability of the defendant.
    10. In such case, the court, pendente lite, allowed the wife $150, and on the final hearing §350, and after the husband’s appeal to the Appellate Court, the further sum of $225, making in all $725. The proof showed that'defendant was worth $50,000, with a fixed annual income of $3000, and that the suit was strongly contested and the record was large: Held, that this court could not say the allowance was excessive.
    11. Same—enforcement of decree—giving a lien upon real estate. On decreeing a wife a separate maintenance, the court may make its decree a lien on the defendant’s real estate, and award execution for the collection of the installments as they become due. The right thus to enforce its decrees is inherent in courts of chancery.
    12. In declaring a lien, however, on the husband’s land, to secure payment of the money allowed the wife, the court should not unnecessarily incumber the defendant’s property. No more of his lands should be tied up by the decree than is reasonably ample security for the payment required by the decree. In the absence of a contrary showing, it will be presumed the trial court did its duty in this respect.
    13. Chancery—oral evidence—presumption in support of finding. Where the evidence in a suit in chancery is conflicting, and the witnesses have been examined orally in open court, the same presumption will be indulged in favor of the finding of the court as in favor of the verdict of a jury.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. Henry W. Magee, for the appellant:
    As to alimony pendente lite, see Foss v. Foss, 2 Bradw. 411; Johnson v. Johnson, 20 id. 495.
    As to the grounds that must be shown for separate maintenance, see Hunter v. Hunter, 7 Bradw. 253; Houts v. Houts, 17 id. 439; Ross v. Ross, 69 Ill. 569; Wahle v. Wahle, 71 id. 511.

      The separation must be shown to have been without the wife’s fault. Umlauf v. Umlauf, 9 Bradw. 517; 117 Ill. 580; Jenkins v. Jenkins, 104 id. 134.
    The husband has the right to select a domicile. The wife’s refusal to go with him absolves him from her support. Babbitt v. Babbitt, 69 Ill. 277.
    When the wife leaves without sufficient cause, and she refuses to return on the husband’s request, she can not have separate maintenance. Angelo v. Angelo, 81 Ill. 251.
    The courts will not encourage married persons to live apart otherwise than under the authority of a judicial decree. See 1 Bishop on Marriage and Divorce, secs. 631-795; Schouler on Domestic Relations.
    Where a husband is guilty of no cruelty toward his wife, and is willing to provide her a home and all necessaries, then he is not bound to furnish them elsewhere. 1 Bishop on Marriage and Divorce, sec. 573; Rutherford v. Cox, 11 Mo. 347; McCutchen v. McGohay, 11 Johns. 282; Liddlow v. Wilmot, 2 Stark, 87; Manby v. Scott, 1 Lev. 4; Bolton v. Prentice, 2 Strange, 1214; Mason v. Mason, 1 Edw. Ch. 285; Evans v. Evans, 7 Hagg. Con. R. 57.
    If the wife abandons her husband without just cause, (such as fear of personal violence,) the husband is not liable for necessaries furnished her. Brown v. Patton, 3 Humph. 135; Carey v. Patton, 2 Ashm. 140; Allen v. Aldrich, 9 Foster, 63.
    There must be. acts or threats which raise a reasonable apprehension of bodily hurt. (Harman v. Harman, 16 Ill. 90.) There must be bodily, harm. Harsh and even opprobrious language will not suffice. Henderson v. Henderson, 88 Ill. 250.
    Cruelty has been considered in the following cases: Vignos v. Vignos, 15 Ill. 186; Turbitt v. Turbitt, 21 id. 438; Carter v. Carter, 52 id. 394; Embree v. Embree, 63 id. 395; Ward v. Ward, 103 id. 477.
    All the cases agree that there must be just ground for apprehending personal violence before the wife can voluntarily go away and charge the husband with support. 1 Bishop on Marriage and Divorce, 570; Blower v. Sturtevant, 4 Denio, 46; Fredd v. Evans, 4 Harr. (Del.) 385.
    If the cruelty under which, the wife suffers comes to her as the natural rebound of her own ill-conduct, she can not have redress in a court of justice, but her remedy is to mend her own manners. 1 Bishop on Marriage and Divorce, sec. 795.
    Messrs. Hutchinson & Partridge, for the appellee,
    after discussing the evidence at considerable length, cited the case of Sharp v. Sharp, 116 Ill. 509, as a review of all the preceding cases, and as defining what -constitutes extreme and repeated cruelty.
   Mr. Justice Shope

delivered the opinion of the Court:

It is urged that the court erred in decreeing relief to complainant, and in the allowance of solicitor’s fees. The evidence of the husband and wife is conflicting and wholly irreconcilable. They were examined orally before the chancellor. The-case depends, to a very considerable extent, if not wholly, upon the credit given to their testimony, although it must be said that the testimony of the wife is corroborated in many important particulars, while the corroboration of the husband is less-in degree, and in regard to matters of less vital importance. It is apparent that the chancellor believed appellee, supported by her witnesses, and rendered a decree based upon her evidence thus corroborated.

In cases in chancery, when the evidence is conflicting, and the witnesses have been examined orally in court, it is said, in Coari v. Olsen, 91 Ill. 277, that there is the same necessity existing as when there has been a trial by jury, that the error in the finding of fact shall be clear and palpable to authorize a reversal. The rule announced is a just one, when the evidence to which credit is given is sufficient to sustain the decree, for the very manifest reason that the chancellor had the witnesses before him, with an opportunity of observing them while testifying, and was thus afforded facilities, frequently of the greatest importance, in determining the weight and credibility of their evidence, which we, from the very nature of the hearing, on appeal, can not have. Ward v. Ward, 103 Ill. 482 ; Flagg v. Stowe, 85 id. 169; Baker v. Rockabrand, 118 id. 370.

To maintain her bill, it was necessary for the complainant to show, not only that she had good cause for living separate- and apart from her husband, but also that such living apart was without fault on her part. At common law, the husband was liable, in an action at law at the suit of any person furnishing to the wife necessaries suitable to her condition in life, if the wife was residing apart from him because of his willful' and improper treatment of her, or by his consent. (2 Kent’s Com. 146; Evans v. Fisher et al. 5 Gilm. 571.) No right of action existed in the wife, courts of equity refusing to take cognizance at her suit, and enforce the legal obligation of the husband to maintain her. (2 Story’s Eq. Jur. 1422.) The statute was passed to remedy this defect in the law, and gave the right to the wife to maintain her bill for separate maintenance, but restricted the right to cases where the living separate and apart from the husband was without her fault. The “fault” here meant and contemplated, is a voluntary consenting to the separation, or such failure of duty or misconduct on her part as “materially contributes to a disruption of the marital relation.” If she leave the husband voluntarily, or by consent, or if her misconduct has materially induced the course of action on the part of the husband upon which she relies as justifying the separation, it is not without her fault, within the meaning of the law. No encouragement can be given to the living apart of husband and wife. The law and good of society alike forbid it. But a wife who is not herself in fault is not bound to live and cohabit with her husband if his conduct is such as to directly endanger her life, person or health, nor where the husband pursues a persistent, unjustifiable and wrongful course of conduct toward her, which will necessarily and inevitably render her life miserable, and living as his wife unendurable. Incompatibility of disposition, occasional ebullitions of passion, trivial difficulties, or slight moral obliquities, will not justify separation. If the husband voluntarily does that which compels the wife to leave him, or justifies her in so doing, the inference may be justly drawn that he intended to produce that result, on the familiar principle that sane men usually mean to produce those results which naturally and legitimately flow from their actions. And if he so intended, her leaving him would, in the case put, be desertion on his part, and not by the wife.

These parties were married January, 1881, and lived together until August 13, 1885, when appellee left appellant, and shortly after filed this bill. It is apparent that dissimilarity of tastes, arising partially from disparity of their ages, but more from different habits of life, led to frequent difficulty between them, and developed into jealousy on the part of the husband. Four acts of personal violence are alleged and testified to by appellee, in two of which, including the last, she is corroborated as to the violence to her person, and want of provocation. It will serve no good purpose to describe them in detail. It is unnecessary to say that appellant denies these assaults, and gives an entirely different version of the difficulties, or such of them as he remembers, from that given by appellee and her witnesses.

This, however, is not all of the case made by the evidence for appellee. During the last two years of their living together, it is proved that he was in the habit of drinking, and was frequently under the influence of liquor, and at such times was very abusive,—cursing appellee, using coarse and degrading language, and applying opprobrious names and epithets to her. When she would attempt to caress him he would push her away from him,—at times with such violence that she would strike the furniture. He was often angry, and would clench his fists and gnash his teeth, frequently without saying anything, but at times using abusive language. The evidence shows that she was sick most of the time during the period of gestation, and suffered greatly. She testifies that he was wholly indifferent to her. It is just to say, that appellant denies all mistreatment of his wife, or that he used liquor to excess. That he was indifferent, and used bad language,—that he was under the influence of liquor frequently, and cross and abusive to her,—is shown by other witnesses than appellee. It is shown, also, that he subjected his wife to public indignity at a ball, where they had gone together, by becoming angry at her because she danced another set after he wished to go home, and, throwing down her wraps, which he had procured for her to accompany him, went away, leaving his wife, at or about midnight, to get home without his protection. In the fall of 1883, two years before the separation, he commenced, as he says, keeping a diary, in which he set down the “bad conduct of the appellee.” He says the diary contained “notes of all little troubles there had been between us,” and that the diary was destroyed by his wife, on its discovery by her, because, as he says, she told him he “had no business keeping such stuff in a book, like that.” When asked by the court if the memoranda were of troubles between himself and wife, he replied, “Yes, sir. I used to mark them down. I thought the troubles were too bad, and now and then I kept a memorandum of them.” On cross-examination he says: “It (the diary) almost contained all her bad conduct, of any account, from the time I was married to her. I kept the memorandum because I expected a suit of this kind, for I thought it could not go very long the way it was going.” He was, it would seem, preparing for the end, which, it may be fairly inferred from his conduct, he was seeking to bring about. It is true he did not, as he says, intend to bring a suit. None would be necessary, on his part, if he succeeded in driving her away. Upon the discovery of the book by appellee, she destroyed it,—burned it, she says. She saw but one entry in it pertaining to her, which was, “My wife, Anna Johnson, pulled my hair,” (giving the date,) which, she says, was utterly untrue. The preparation and keeping of such a book, going back, and from memory entering therein “all her bad conduct, of any account,” from the time of the marriage, shows, that as early as the fall of 1883, substantially two years before the separation, appellant was contemplating a separation, and preparing for it. Appellee testifies, that on three different occasions he told her .he wanted to get rid of her; that he did not care for married life; that he wanted to go back to Colorado; he was happy there,—the last time being shortly after her baby was born. August Lagergen testified, that in September or October, 1884, appellant complained that his wife had a bad temper and terrible tongue, and said “that he should try to get rid of her some way.”

It was, perhaps, not so much in direct charges impugning appellee’s chastity, as in his conduct and declarations implying his belief in her unfaithfulness to her marriage vows, that his jealousy found expression. Even after this bill was filed, at a meeting arranged by counsel, for some disposition of certain of the articles of household property, appellant expressed a desire for appellee’s return, saying, “Anna, I would rather you would not go away; come and live as we were living, or if you want a separate room or rooms, and live apart from me, you can do so.” She told him she could not live in a house with a man she loved, and live apart from him, and said to him, “You know I was a pure girl when I married you.” He said in reply, “No man can tell whether a woman is pure.” On the hearing the chancellor repeatedly tried to bring about a reconciliation between the parties, but each time was thwarted by the willingness of appellant to have appellee return to him, if, upon investigation, he found the appellee a pure woman. Not then, but time must be given to investigate. It might be done in a week, or a month, or three months, but there was that which made it impossible for her to return until investigation was made, and the result proved satisfactory to appellant. Over a year had intervened between the filing of the bill and the hearing. Appellant was possessed of ample means. The widest range was allowed appellant to attack the chastity of appellee,—hearsay statements of her mother and others gone into; yet it is sufficient to say, the record is barren of anything that ought, or in the opinion of any just minded person could, cast a suspicion upon appellee’s virtue. This implied belief in her unfaithfulness gave his words a potency to' wound they would not otherwise possess, and a force and sting was given, by the state of his mind toward her, to each otherwise trivial circumstance, which might render them intensely cruel.

That appellee was not wholly blameless, at all times, in respect of the troubles with her husband, or as patient under provocation as some women would have been, is, we think, apparent, and may be conceded without materially affecting her ■cause. There were occasional sallies of passion and the use of harsh' language, which, while it can not be approved, would be no palliation, justification or excuse,—if, indeed, anything could be,—of the personal violence inflicted by the husband upon the wife, or for the persistent course of conduct toward and treatment of her, pursued by appellant, which would inevitably result, as he foresaw it must result, in estrangement and separation. The husband and wife must mutually bear with each other’s tempers and dispositions. Mere ebullitions of temper, trivial delinquencies of conduct, and the like, can not be made grounds for disrupting the family, nor a pretext for a course of conduct which necessarily produces that result.

Not only, therefore, can we say that the finding of the trial court is not clearly and palpably shown by the record to have been erroneous, but we think it was warranted in finding that appellee was justified in living apart from her husband, and that she was so living without legal fault on her part.

It is urged, that after the filing of the bill, appellant having requested appellee to return and live with him, she was bound to do so, and therefore the decree is erroneous. We have before adverted to the offer referred to, and need not repeat it. Although appellant may have deserted appellee, or driven her away from him, it is undoubtedly true the locus penitentiæ must be kept open for him; but if he offer to return, or to take her back, it must be in good faith, and under circumstances giving reasonable assurance of amendment. On a former occasion, she had, in consequence of his cruelty, left him and gone to her mother’s. He went after her, and promised her better treatment, telling his nephew, as the nephew testifies, he ought to be in jail for his conduct. She accepted of his repentance as genuine, and, relying on his promise, returned, but there was no amendment of his conduct.' On the occasion referred to by counsel, there was no repentance, no offer to do better, no promise of kindness, no protestation of respect or confidence,— «only, as we have seen, an expression of his wish that she return and live as they had lived, or in separate rooms, if she preferred, and an implied doubt of her purity. She was not bound to return and receive the same treatment at his hands, nor return to his domicile and there live apart from him. It is the actual marriage of the parties,—their living together as husband and wife in lawful wedlock,—that the law favors, and that each has the right to demand. While the wife is living separate and apart from the husband, without fault on her part, he has no right of control as to her place of domicile. That she may fix without his consent, until he shall put her in the wrong, by an offer, in good faith, to restore the marital relation by receiving her back as his wife. But in view of subsequent events, further discussion seems unnecessary. It can hardly be pretended that the offer was in good faith, or if it was, that the subsequent refusal to receive her back without time was given to investigate the question of her chastity, would not still place appellee in the wrong.

The allowance to appellee of $80 per month is said to be excessive, and therefore the decree is erroneous. It was conceded that the defendant was worth $50,000, with a fixed annual income of $3000. The allowance is to be determined by the exercise of the judicial discretion of the court, having reference to the condition of the parties in life, and the circumstances of the case. (Rev. Stat. chap. 68, see. 22.) We can not say that this has not been done, or that, having reference to the condition in life of the parties and circumstances of the case, the allowance is excessive. We would be justified in interfering for that reason, only when it was clearly apparent to us that an unjust allowance had been made. Foote v. Foote, 22 Ill. 426.

The court awarded execution to issue in default of payment of the monthly allowance, as in the decree provided, and also-made the allowance, etc., a lien on the real estate of the defendant. The right of the court to thus enforce its decrees is-inherent in courts”of chancery, and we perceive no error in this regard. It would, however, be the duty of the court, in declaring the lien, not unnecessarily to encumber a defendant’s property. He may not, in cases of this sort, discharge the lien at once by the payment of money, and it would be highly inequitable to tie up more of the defendant’s land than is reasonably ample security for the payment required by the decree. It is not shown that property in excess of what would be reasonable security is included in the lien, and the presumption in favor of the correct exercise of discretion by the chancellor must prevail. If the decree, as entered, is in this respect unjust, application can be made to the chancellor for a modification thereof,-at any time.

It is urged that the allowance of solicitor’s fees to be paid appellee’s solicitors is excessive and erroneous. The allowances were: Pendente lite, $150; on final hearing, $350; after appeal to Appellate Court, for solicitor’s fees, etc., in that court, $225; total, $725. The statute provides, (Rev. Stat. chap. 68, sec. 22,) “the court may grant allowance to enable the wife to prosecute her suit, as in cases of divorce.” The court may, in the exercise of a judicial discretion, allow reasonable solicitor’s fees. Such allowance should be made in view of the services rendered or to be rendered, and the ability of the party against whom the order is made to pay the same. The only objection here made, is, as already stated, that the amount is excessive. In looking into the record, we find it large, and it is evident that the cause has been sternly contested in the several courts through which it has passed. While the orders are subject to review, yet we should not interfere with the exercise of discretion by the trial court, unless it clearly appears that the amount is excessive. (Foote v. Foote, supra: Foss v. Foss, 100 Ill. 576; Jenkins v. Jenkins, 91 id. 167; Blake v. Blake, 80 id. 523.) In view of the record, we are not prepared to say there was any abuse of discretion by the chancellor.

The decree- will be affirmed.

Decree affirmed.


author: Mr. Justice Scott

text:
    Asahel Gage v. Armanella R. Brown.

      Filed at Ottawa June 16, 1888.

    1. Chancery—rule to answer, after amendment of bill. After the submission of a cause for hearing, upon the pleadings and proofs, the court, against the defendant’s protest, allowed an amendment of the bill asking relief not before sought, refused to continue the cause, and entered a decree embracing the new matters: Held, that the court could not properly proceed to hear the case made by the amendment, without first laying a rule upon the defendant to answer.
    2. Assignment of error—must be upon the record. Cross-errors, to be considered, must be written upon or attached to the record, as required by rule 15 of this court. It is not sufficient that they are written upon a separate piece of paper.
    Writ of Error to the Circuit Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding.
    Mr. Augustus N. Gage, for the plaintiff in error.
    Mr. Consider H. Willett, for the defendant in error.
   Mr. Justice Scott

delivered the opinion of the Court:

After both parties had submitted this cause for hearing on the original and amended bills, and upon answers thereto, and upon the proofs taken, the court, against the protest of defendant, granted complainant’s motion to further amend the original bill. That was done, and in the amendment made, complainant asked relief against a certain tax deed, not prayed for in the original-bill, nor by any amendment to it. Thereupon, defendant entered a motion for a continuance, on the ground of surprise by the character of the amendment; that it made an entirely separate and. distinct issue, and that as defendant is not a resident of this State, but of New Jersey, and is not now in this State, his counsel was not ready for trial upon any other issue than that presented by the bill. Counsel filed his own affidavit in support of the motion for a continuance, stating the grounds of such motion with the usual fullness. On counsel for complainant stipulating he would “only use the record upon which the deed itself was issued,” in support of the allegations of the amendment just made to the bill, the court overruled the motion for a continuance, and defendant saved an exception to that decision. The court then proceeded to hear further testimony, both oral and what complainant’s counsel calls “record” evidence, touching the matters alleged in the last amendment to the bill, and rendered a decree concerning matters alleged in the original bill, and also concerning matters contained in the last amendment to the bill.

It is quite evident the court proceeded erroneously. It could not properly proceed to hear the case as made by the last amendment to the bill, without first requiring defendant to answer the same. As has been seen, it made an entirely distinct and separate issue, and asked for relief not demanded by the original bill, nor by any previous amendment to it. Mo rule was laid upon defendant to answer instanter, or within any reasonable time; and it was manifest error in the court to proceed to further hear the cause upon additional proofs, without answer, unless a rule had been first laid upon defendant to answer, so that he could have been placed in default.

The motion to suppress certain depositions ought to have been allowed. It may be, what they contain is not very material to the real issues involved; but conceding the depositions had been returned in the condition the court found them to be, the court should have allowed the motion to suppress.

The question argued by counsel for complainant, that the chancellor “should have decreed without the imposition of any conditions, under the peculiar * * * circumstances of the record,” can not be considered, for the reason no assignment of “cross-errors" has been “written upon or attached to the record,” as required by rule 15 of this court. What purport to be cross-errors are assigned upon a separate piece of paper, and are filed among other papers in the cause. That, this court has frequently held, is not a compliance with the rule. Ditch v. Sennott, 116 Ill. 288; Benneson v. Savage, 119 id. 135.

For the error indicated, the decree will be reversed and the cause remanded.

Decree reversed.


text:
    Christian C. Taubenhan et al. v. Margareth Dunz.

      Filed at Ottawa June 16, 1888.

    1. Wills—rule of construction. The question of first importance in the construction of any will is, what was the intention of the testator,— and when that is ascertained, effect is to be given thereto. In the absence of latent ambiguity, the intention of the testator is to be gathered alone from the will itself, from a full view and consideration of everything contained therein.
    2. Every portion of a will must have its just operation, unless there arises irreconcilable repugnance, or some portion is absolutely unintelligible; and the natural construction of the words employed will be adopted, unless there is such an impracticability of so construing them as to authorize their rejection, or such uncertainty that no effect can he given to them.
    3. Same—presumption—as to disposal of entire estate. It is presumed that a testator, when he makes and publishes his will, intends to dispose of his entire estate, unless the presumption is rebutted by its provisions, or evidence to the contrary.
    4. Same—disinheriting heir—construction. An heir is not to be disinherited without an express devise or necessary implication.
    5. Same—extent of devise—as to the property embraced therein. Where it appears that it was the intention of the testator to bestow all his estate upon one person, that intention will not be defeated by a partial designation of the property, if the general words, giving to them their natural meaning and operation, are comprehensive enough to embrace the whole estate.

      6. A testator devised to a person named, all his real estate by its proper description, and all his interest in a certain note secured by a deed of trust, immediately following which are these words: “Also, $3000 in money, to be paid to her by my executor; also, all the loose property in, on and around the homestead, consisting of one cow, two hogs, and a lot of wood, and all •other property of every kind. ” The testator owned other promissory notes for money loaned: Held, that but for the last clause the general description might have been limited to property of the like kind, as, cows, hogs and wood, but that with those words the sole devisee took all the property and estate left by the testator.
    7. The adjudged cases indicate the disposition of the courts to adhere to the sound rule, which gives to words of a comprehensive import their full extent of operation, unless some very distinct ground can be collected from the context for considering them as used in a special and restricted sense. This is especially true where there is no other bequest capable of •operating on the general residue of the testator's personal estate.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Carroll county; the Hon. John V. Eustace, Judge, presiding.
    Shortly before his death, Charles Medler, of Carroll county, made and published his last will and testament, in these words:

      “In the name of God, amen: I, Charles Medler, of the age of sixty-nine years, of the city of Mount Carroll, in the county •of Carroll, and State of Illinois, being of sound mind and memory, do make, publish and declare this my last will and testament, in the manner following,—that is to say: I will and direct that all my just debts and funeral expenses be paid in full. Second, I give and bequeath unto my friend, Margareth Dunz, the homestead and all the lots and parcels of land adjoining, being lots 2, 3 and 4; also a strip of land, twenty-three feet in width, off the north side of lot No. 7, all in block 15, in the N. Halderman plat of the town, now city, of Mount Carroll; also, one lot in the east part of the city of Mount •Carroll, now owned by me and described by deed; also, all interest I now have in a certain promissory note for $200, given "by Charles Stober, dated November 19, 1873, and secured by a certain trust deed of the same date on lot 11, in block No. 5, in West Carroll, as laid out by David Emmert, and signed by Charles Stober and wife; also, $3000 in money, to be paid to her by my executor; also, all the loose property in, on and around the homestead, consisting of one cow, two hogs and a lot of wood, and all other property of every kind,”—and revoking and annulling former wills.
    The will was dated December 31, 1882, was admitted to probate the following February, and Horatio B. Blake duly appointed administrator with the will annexed, who qualified as such.
    It appears that appellants are residents of Saxony, Germany, and, claiming to be the sisters and only heirs of the testator, they petitioned the Carroll county court, and claimed that all the estate of their brother, “except the $3000 and the other articles specifically named and described in the will as devised and bequeathed to Margareth Dunz,” belonged to them, as such heirs, and asked an order of distribution to that effect. ' It was alleged in their petition that the devises and bequests to Margareth Dunz had been surrendered and paid over to her; that the debts of the estate had been paid, and that the administrator had in his hands, subject to distribution, about $2000. The administrator also petitioned the court to make an order of distribution, and represented that the debts of the estate and the legacies in the will had been paid, leaving a balance of $1943.38 in his hands.
    What disposition was made of the case in the county court does not appear, but the case presented by the petitioners was carried by appeal into the circuit court of that county, where, on hearing, it was found by the court that Margareth Dunz took, under the will, all the estate of the testator, and accordingly ordered the dismissal of the petition. Upon further appeal to the Appellate Court for the First District, at the November term, 1886, the judgment of the circuit court was affirmed.

      Messrs. Vocke & Storck, for the appellants:
    The heir is not to be disinherited without an express devise or necessary implication. 1 Jarman on Wills, (5th Am. ed.) 356; 1 Redfield on Wills, *426, note, *435.
    The heir is always to be favored at law, and not to be excluded upon mere conjecture. On the contrary, there must be satisfactory evidence of an intention to give a beneficiary interest to the devisee. Saylor v. Plaine, 31 Md. 158.
    When a will is capable of two interpretations, that one should be adopted which prefers those of the blood of the testator to strangers. Wood v. Mitcham, 92 N. Y. 375; Crane v. Doty, 1 Ohio St. 279; Areson v. Areson, 3 Denio, 458.
    The intent to exclude the heir must be clear and manifest, (Moone v. Heaseman, Willes, 141,) and that intent must be collected from the words used, and not from conjecture. Hay v. Earl of Coventry, 3 T. R. 83; Moore v. Denn, 2 Bos. & P. 247; Wheaton v. Andress, 23 Wend. 452; Haxtun v. Corse, 2 Barb. Ch. 506.
    Where the meaning of a devise is uncertain, the law will adhere as closely as possible to the general rules of inheritance, and whoever claims against the laws of descent must show a satisfactory written title. Grim’s Appeal, 89 Pa. St. 333.
    Where bequests are made by words of enumeration, which are followed in the same clause by collective words, or words of general description, the latter may be confined to matters ejusdem generis. Rawlings v. Jennings, 13 Ves. 39; Dole v. Johnson, 3 Allen, 364; Johnson v. Goss, 128 Mass. 433; Farish v. Cook, 78 Mo. 212; Fraser v. Alexander, 2 Dev. Eq. 348; Wrench v. Jutting, 3 Beav. 521; Timewell v. Perkins, 2 Atk. 102; Pippin v. Ellison, 12 Ired. L. 61; Hotham v. Sutton, 15 Ves. Jr. 319; Cook v. Oakley, 1 P. Wms. 302; Doe v. Rout, 7 Taunt. 79; Collier v. Squire, 3 Russ. 467; Bullard v. Goffe, 20 Pick. 252; Crichton v. Symes, 3 Atk. 61.

      Mr. James M. Hunter, and Mr. George L. Hoffman, for the appellee:
    It is presumed that a testator, when he makes and publishes his will, intends to dispose of the whole of his estate, unless the presumption is rebutted by its provisions, or evidence to the contrary. Higgins v. Dwen, 100 Ill. 554; Smith v. Smith, 17 Gratt. 268; Irwin v. Zone, 15 W. Va. 646; Jarman on Wills, (4th ed.) 143, note 6.
    The intention of the testator must govern, which must, if possible, be ascertained from the language of the instrument. Bergan v. Cahill, 55 Ill. 160; Johnson v. Johnson, 98 id. 564; Rountree v. Talbot, 89 id. 246.
    Generally, a will is not to be construed by anything dehors, when there is no latent ambiguity; and parol evidence is not admissible to show the intention of the testator, against the construction on the face of the will, and to explain the intention of the state of his property. Heslop v. Gatton, 71 Ill. 528.
    Wills must be construed according to the intention of the maker, and that must be ascertained from an* examination of the instrument and all its provisions, without the aid of extraneous testimony. Updike v. Tompkins, 100 Ill. 406; Blanchard v. Maynard, 103 id. 60.
    Where the language of a will is clear and unambiguous, and there is no conflict in its various provisions, and no absurdity would thereby be involved, it should be given effect according to the literal terms used, taken in their general and popular sense, without regard to the situation, circumstances or condition, either of the testator, his property or family. Welsch v. Savings Bank, 94 Ill. 191; Land and Loan Co. v. Bonner, 75 id. 327; 1 Redfield on Wills, 429, 430.
    The words, “all other property of every kind,” are sufficient to pass choses in action or any other personal estate. Hardle v. Outlaw, 2 Jones’ Eq. 75; Jackson v. Hansel, 17 Johns. 281.
   Mr. Justice Shope

delivered the opinion of the Court:

But a single question is presented by this record,—namely, what portion of the estate of Charles Medler, deceased, did Margareth Dunz take under his will,—or, otherwise stated, was any portion of said estate intestate estate. It is not controverted but that Margareth Dunz took possession of and had received the lands described and referred to, the sum of money named, the particular note and the specific articles of personal property described and referred to in the will; but after this was done, there remained in the hands of the administrator about $2000 in money and $2420 of notes reported by him as uncollectible, and this residue of the estate was claimed both by Margareth Dunz, under the will, and by appellants, the sisters of the testator, his heirs-at-law, as intestate estate.

The question of first importance in, every case of construction of a will is, what was the intention of the testator,—and when that is ascertained, effect is to be given thereto. In the absence of latent ambiguity, the intention of the testator is to be gathered, alone, from the will itself,—from a full view and consideration of everything contained within “the four corners of the instrument.” (Hoxie v. Hoxie, 4 Paige, 187; Updike v. Tompkins, 100 Ill. 406; Blanchard v. Maynard, 103 id. 60.) Every portion of the instrument must have its just operation, unless there arises an irreconcilable repugnance, or some portion is absolutely unintelligible. As was said in Dawes v. Swan, 4 Mass. 208, it is the duty of the court “to give effect to all words, without rejecting or controlling any of them, if it can be done by a reasonable construction, not inconsistent with the manifest intention of the testator.” See, also, 1 Redfield on Wills, 434; Illinois Land and Loan Co. v. Bonner, 75 Ill. 315. And further, the natural construction of the words employed will be adopted, unless there is such an impracticability of so construing them as to authorize their rejection, or such uncertainty that no effect can be given them. Mowatt v. Carow, 7 Paige, 328; Welsch v. Belleville Savings Bank, 94 Ill. 191.

In the will before us, there is neither ambiguity, repugnance nor unintelligibility, and if the words employed are given then-natural construction and meaning, disposition is made of the testator’s entire estate. “It is presumed that a testator, when he makes and publishes his will, intends to dispose of his entire estate, unless the presumption is rebutted by its provisions- or evidence to the contrary.” (Higgins v. Dwen, 100 Ill. 554.) There is, here, not only no evidence aliunde of a contrary intention, but in the will itself no words are to be found manifesting an intention to leave any part of the testator’s estate undisposed of. His estate, in fact, consisted of both real and personal property, a large part made up of promissory notes. No question is made in respect to his real estate,—all that-was specifically devised'; nor “in respect of the Stoker note,, the $3000 in money, or the loose property “in, on and around the homestead.” All that, it seems to be conceded, was specifically bequeathed. Nor is it contended hut that the final granting words of the will, “and all other property of every kind, ” are sufficiently broad and comprehensive in meaning, if given their natural construction, to embrace the residue of the estate, consisting of the proceeds of the choses in action, possessed by the testator at the time of his decease. But the contention on behalf of appellants is, first, that the heir is not-to he disinherited without an express devise or necessary implication ; and second, that the words, “and all other property of every kind,” should be confined to articles ejusdem generis with loose property in, on and around the homestead, and that as to all that part of his estate not specifically disposed of by will, the testator died intestate, and the same descended to-his heirs-at-law.

The rule that the heir is not to he disinherited without an express devise or necessary implication, is not questioned; but the rule can have no application here, and need not be further considered, because we have in this will an express devise, broad and comprehensive enough to embrace every species of property owned by the testator, unless the words, “and all other property of every kind,” by then connection and juxtaposition are to be limited to property ejusdem generis with property theretofore particularly named.

The principle of construction secondly invoked, and upon which chief reliance is placed, and by which it is sought to limit and circumscribe the application of the words of the will last referred to, which, torn from their context and standing alone, would manifest the clearest intention to bestow upon the only person named in the will the residue of the testator’s estate, is in the highest degree technical, and ought not to be adopted and applied, unless, from an inspection and consideration of all the provisions of the will, its adoption and application are required to carry out and give effect to the discerned intention of the testator. There is not in the principle itself anything that can give to it the nature and character of a rule of property. But does the will before us present a case of either doubt or uncertainty? We think not. But a single legatee is named in the will. But one object of his bounty seems to have been in the mind of the testator. True, he specified only a part of his property ; but such specific designation was followed by words of comprehensive import. As said by Lord Bojiilly, in Nugee v. Chapman, 29 Beav. 290, “it is not uncommon for persons who intend to include everything, and who do not write accurately, to specify many items, and then to add a general expression.” This will is inartificially drawn. It is manifest that the scrivener had some knowledge respecting the words employed in making testamentary devises and bequests; but it is apparent from an inspection of the will itself, that he had little knowledge of the forms necessary in making testamentary disposition of estates. If it was the intention of the testator to bestow all his estate upon one person, that intention will not be defeated by a partial designation, if the general words, giving to them their natural meaning and operation, were comprehensive enough to embrace the whole estate. It is easy to see it was the intention that the legatee should take the particular lot of land occupied by him as a homestead, and from the description thereof in the will, it is apparent that the draughtsman supposed the testator owned it in fee, whereas, the fact is he only owned the undivided one-half interest. And it is also apparent that the intention was to give the same legatee a portion, at least, of the loose property in, on and around the homestead; but it might very well have been questioned whether it was the intention to give the legatee “all the loose property in, on and around the homestead,” since these general words are immediately followed by the particular words,—“consisting of one cow, two hogs and a lot of wood.” There were, in fact, in, on and around the homestead, many other articles of property, such as kitchen furniture, ten bushels of potatoes, three boxes export beer, four and three-quarters barrels cider, thirty bushels corn, fifty bushels oats, a ton of hay, a lot of ice and lumber, and implements and tools of various sorts; and it might well have been said that the general words, “all the loose property in, on and around the homestead,” should be cut down to articles ejusdem, generis with cows, hogs and wood. There would then have been presented just such a case of doubt and uncertainty as is contemplated for the application of the principle of construction ejusdem generis. Were furniture, potatoes, beer, cider, corn, oats, hay, ice, lumber, tools and implements ejusdem generis with cows, hogs and wood ?

It is singular, perhaps, that this will should itself enable us to most clearly, and, as it seems to us, satisfactorily, mark the distinction between a case where the principle might be thought to apply, and the case so strongly urged upon us. We can understand how all the loose property in, on and around the homestead might, by the application of the principle, be cut down to articles ejusdem generis with cows, hogs and wood; but what shall he said of the further words, “and all other property of every kind ?” With which class or species of property shall they be held to he ejusdem generis ? Shall they be cut down and limited to cows, hogs and wood ? The testator only had one cow, two hogs and one lot of wood, and these were specifically bequeathed, and to hold the general words limited to the particular articles bequeathed, would be to render inoperative words of the most general import, because there would be no property upon which they could operate and to which they could attach. Operation and effect must be given to each and every provision in the will, as we have seen, unless there is irreconcilable repugnance, or unless the provision is unintelligible. It is clear neither exception here exists; and if the general words, “and all other property of every kind,” can not be cut down to the particular articles named in immediate connection, then there are left no particular words, either immediately preceding or following, by which they may be qualified. There are no following words, and the preceding words (excluding, as we have seen we must, the cow, hogs and wood,) are themselves general words,— namely, “all the loose property,” etc.

The most careful examination and analysis of the provisions of this will, and of the authorities relied upon, have satisfied us that the principle of construction contended for can not be applied to this will. A testator may dispose of his estate by will, by specific or general designation of the subject of devise, or by both; and he may devise his entire estate to a stranger to the exclusion of the heir. He need observe no set form or phrase or order. All that is required is, that he shall so express himself, and employ such words, as, giving to them their natural and ordinary meaning and acceptation, his intention shall be discernible. The testator, here, was without wife or child, and had no one apparently dependent upon him. His only kindred were far-removed residents of a foreign country, and with whom, so far as has been disclosed to us, he held no communication. Shortly before his death he made and published his last will and testament, wherein he made specific devise to appellee of all his real estate and a considerable portion of his personalty, and concluded the granting portion of his will by the selection of words of most general import and operation, and no satisfactory reason has been suggested why the intention clearly manifested by the plain words of his will, that provision was therein made for the disposition of his entire estate, and that the sole legatee therein named should take it all, ought not to prevail. We are not advised what relation appellee sustained towards the testator, nor is it material. . It is enough for the purposes of this case and the question before us, that she is made the sole beneficiary of the testator’s bounty.

No extended review of the cases relied upon by appellants will be necessary. In the following cases, among others examined, it was held that the general words were limited by the particular devise: Rawlings v. Jennings, 13 Ves. 39; Dole v. Johnson, 3 Allen, 364, (but see Brown v. Cogswell, 5 id. 556); Johnson v. Goss, 128 Mass. 433; Frasier v. Alexander, 2 Dev. Eq. 348; Farish v. Cook, 78 Mo. 212; Wrench v. Jutting, 3 Beav. 521; Timewell v. Perkins, 2 Atk. 102; Pipin v. Ellison, 12 Ired. L. 61, (but see Hurdle v. Outlaw, 2 Jones’ Eq. 75); Hotham v. Sutton, 15 Ves. Jr. 319; Cook v. Oakley, 1 P. Wms. 302; Collier v. Squire, 3 Russ. 467; Crichton v. Symes, 3 Atk. 61; Bullard v. Goffee, 20 Pick. 252. Interesting and instructive as these eases are, they fitly illustrate the refinement of learning upon this subject, and at the same time demonstrate the impossibility of formulating a settled rule of construction of general application, and they further show that wherever the principle contended for has been applied, the decision is based on the peculiarities of language and fact in the particular case.

In contrast with the foregoing, reference is here made to a line of authorities where the principle has been denied application: Nugee v. Chapman, 29 Beav. 290; Grover v. Davis, id. 222; Swinfen v. Swinfen, id. 207; Bennett v. Bachelor, 3 Brown’s Ch. 26; Dean v. Gibson, 3 L. R. Eq. 713; Hodgson v. Jex, L. R. (2 Ch. Div.) 122; Arnold v. Arnold, 2 M. & K. 366. In the last case cited, the bequest of “my wines and property in England,” was held to apply to the testator’s property in England, of every description, and was not confined to property ejusdem generis with wines; and it was observed by Sir John Leach, Master of the Rolls: “The mere enumeration of particular articles, followed by a general bequest, does not of necessity restrict the general bequest, because, as has been stated, a testator often throws in such specific words and then winds up the catalogue with some comprehensive expression, for the very purpose of preventing the bequest from being so restricted. Clearly, therefore, in the ordinary case, the gift of the wines would not be limited by the occurrence of the subsequent word ‘property,’ which, be it observed, is as large and comprehensive a term as can possibly be used. * * * Indeed, I have been unable to discover any instance in which the word ‘property’ has been confined to articles of the description above enumerated, unless where other expressions occurred from which it was clear that the word was not there used in its ordinary sense. The cases upon this subject naturally turn upon very nice distinctions. • In most of them the general bequest sought to be restricted has been of ‘effects,’ and I know of none in which the question has arisen on the word ‘property,’ unless where it has been introduced by way of exception or qualification to the prior gift.” And Mr. Redfield observes in his work on Wills, (vol. 1, p. 442, note,) that “the courts of equity, even in England, do not seem to apply the rule ejusdem generis with so much strictness as formerly.” See, also, the following: Martin v. Glover, 1 Coll. 269; In re Kendall, 14 Beav. 608; Flemming v. Burrows, 1 Russ. 276; Jarnagin v. Conway, 2 Humph. (Tenn.) 50; Hurdle v. Outlaw, 2 Jones’ Eq. 75; Bunting v. Harris, Phill. Eq. 11; Kennedy v. Keily, 28 Beav. 223; Campbell v. Prescott, 15 Ves. 503; Mitchell v. Mitchell, 5 Mad. 69.

Without extending this citation of authorities, the result of our examination may be stated in the language of Mr. Jarman, (1 Jarman on Wills, 761): The adjudged cases “indicate the disposition of the judges of the present day to adhere to the sound rule which gives to words of a comprehensive import their full extent of operation, unless some very distinct ground can be collected from the context for considering them as used in a special and restricted sense.” And especially must this rule be observed where there is no other bequest capable of operating on the general residue of the testator’s personal estate, as is the case here.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    James M. Samuels et al. v. The Drainage Commissioners, etc.

      Filed at Springfield June 14, 1888.

    1. Drainage law—lien for drainage assessments—foreclosure—under what statute. Section 253 of the Revenue law has exclusive reference to the foreclosure of liens for taxes, and the consequent penalties, interest and costs, and was never intended to apply to the foreclosure of liens for drainage assessments. That is regulated by section 72 of the Drainage act. of 1885.
    2. Section 72 of the Drainage act of 1885, provides a special proceeding: for the foreclosure of the lien for drainage assessments, independently of the one given by the Revenue law, for the foreclosure of liens for ordinary taxes, and it should be pursued.
    3. Same—decree of foreclosure—sale by the master. It is no objection to a decree for the foreclosure of the lien of a drainage assessment, that it directs a sale to be made by the master in chancery. Section 72 of the act of 1885 declares, that any judgment so recovered may be enforced and collected as other judgments in the same court.

      4. Same—constitutionality of act, as to mode of levying and collecting assessments. Section 31, article 4, of the constitution, as amended in 1878, confers upon the General Assembly all necessary power in matters of drainage, both as to the mode of the levying and collecting of special assessments upon property benefited and lying within the drainage districts as organized under its provisions. The mode provided in section 72 of the Drainage act of 1885, for the foreclosure of the lien of assessments, is clearly within the powers conferred by the constitution.
    5. Same—drainage commissioners, as officers de facto. There being such an office as drainage commissioners, persons assuming and exercising the duties of that office are de facto officers, and their official acts will be held valid until their right is called in question by quo warranto, and they are dispossessed thereby of all power under the statute.
    Writ of Error to the Circuit Court of Fulton county; the Hon. John C. Bagby, Judge, presiding.
    Messrs. Connolly & Mather, for the plaintiffs in error.
    Mr. E. A. Wallace, for the defendants in error.
   Mr. Justice Scott

delivered the opinion of the Court:

The hill in this case was brought by the Commissioners of the Central Special Drainage District, in the county of Mason, against James M. Samuels and Matilda Samuels, to foreclose a lien claimed for drainage assessments, against certain lands owned by defendants. The proceeding was commenced under section 72 of “An act to provide for drainage for agricultural and sanitary purposes, and to repeal certain acts therein named,’* approved June 27, 1885. That section provides that the assessments made under said act shall be a lien on each tract assessed in the district, and if 'the assessment is not paid on or before the annual sale of lands for non-payment of taxes, the commissioners may file a petition in the circuit court of the proper county, “for a foreclosure of such lien; and the commissioners may proceed in their corporate name and capacity to foreclose such lien, as provided by law.” It is conceded by counsel for defendants, the bill shows everything necessary for the creation of a lien under the section of the statute cited. It may, therefore, be assumed, in the brief discussion that is to follow, if the allegations of the bill are to be regarded as true, complainants are entitled to the relief asked for, unless some valid objection appears on the face of the record itself. On motion of defendants, the venue of the cause was changed from Mason county, where the suit was commenced, to Fulton county. Although a rule was laid upon defendants to answer the bill, neither of them filed any answer, but made default, and thereupon it was taken as confessed as to both of them. The cause was then referred to the master in chancery, to take and report proofs, and it is then recited in the decree, the cause came on for “final hearing, on bill, exhibits, and the default of” defendants, “and the bill taken for confessed against them; the report of the master in chancery, the documentary and oral proofs.” It appears the court, by its decree, found that every material allegation of the bill was true, and decreed a foreclosure of the lien alleged to exist against the lands of defendants. Only such errors are insisted upon as are thought to appear on the face of the record.

It is said, the bill shows the levy, in the aggregate, was $113,862, and that the decree finds the aggregate to be a much less sum, and it is submitted the decree is so uncertain and contradictory in this respect it should not be allowed to stand. The amended transcript of the record filed in this court shows the alleged error in this respect does not exist, and this suggestion of error need not be further considered.

It is also made a point against the present decree, that the lien claimed is not foreclosed in the manner provided by law. The argument seems to be, the proceedings to foreclose the lien for drainage assessments should be the same as provided by law for the foreclosure of tax liens on lands, under section 253 of the Revenue act. It is a sufficient answer to the position taken, to say that section 253 of the Revenue law has exclusive reference to the foreclosure of liens for taxes under the Revenue law, and the consequent penalties, interest and costs. It was never intended to apply to the foreclosure of liens for drainage assessments, which are quite a different thing from the ordinary revenue of the State. Section 72 of the Drainage act provides a special proceeding for the foreclosure of the lien for drainage assessments, independent in itself, and that has been pursued in this case. It is expressly provided, the remedy given by that section “shall be taken and held as an additional means to enforce payment of such delinquent assessment.” This view of the remedy provided by section 72 for the collection of drainage assessments, renders it unnecessary to remark upon the constitutional objections insisted upon. The mode provided by section^ for foreclosing the lien in such cases, is clearly within section 31, of article 4, of the constitution, as amended by the popular vote in 1878. That section of the constitution would seem to confer upon the General Assembly all necessary power in such matters, both as to levying and collecting special assessments upon property benefited, and lying within the drainage districts organized under its provisions. As was said by this court in Huston v. Clark, 112 Ill. 344: “The special amendment of the constitution, adopted in 1878, so far as it invades the former limitations of the constitution, must prevail, and such limitations are not applicable to the subject matter of this special assessment.” There is nothing in-the objection the master in chancery is directed to make sale of the property in default of payment of the decree. Section 72 declares, “any judgment so recovered may be enforced and collected as other judgments in the same court.” That is sufficient authority for appointing the master in chancery to execute the judgment or decree of the court.

Lastly, it is said the assessment in question was made by persons having no authority either de jure or de facto, and is therefore void. It is not perceived how this question can arise on this record; but if it does, it is not one that can prevail in this case. Whether the clause of the statute providing for the election of drainage commissioners is valid or not, is a question that need not now be discussed. The legislature, by statute, has created, under constitutional authority, such an officer as commissioner of drainage districts. It is alleged the “Central Special Drainage District,” in Mason county, was duly organized under the act of the General Assembly, in force July 1, 1885, and that afterwards petitioners were elected commissioners, and that they entered upon their duties as such, and are now acting. The default of defendants admits these allegations of the bill, and the court found, from the evidence, such was the fact. There being such an office, and petitioners having assumed the duties of such office, and are now acting commissioners of the drainage district, they are defacto officers, and their official acts will be held to be valid until their right to exercise the duties of such office is called in question by quo warranto, and they shall be dispossessed of all power under the statute.

The judgment of the circuit court will be affirmed.

Judgment affirmed.