text:
    In the matter of probate of the will of Wilbur F. Storey.

      Filed at Ottawa March 22, 1887.

      1. Wills —probate of wills—appeals—parties—trial de novo, etc. The statute gives the right of appeal from orders of the county or probate court allowing or disallowing the probate of any will, to the circuit court of the same county, by any person interested in such will, to he taken in the same time and manner as appeals from justices of the peace, except that the appeal bond and security may be approved by the clerk of the county court, and on the appeal the trial shall be de novo.

    2. An order of the probate court of Cook county, in allowing or disallowing the probate of a will of a deceased person, is final and conclusive, unless, on appeal, in the time and in the manner provided by statute, it shall be reversed by the judgment of the circuit court. But that court can not try the case de novo, except when it is brought before it according to law.
    3. All persons interested in the will of a deceased person have the statutory right to appeal from an order of the county or probate court refusing to admit such will to probate. Such persons may appeal jointly or separately. The giving and approval of the appeal bonds divest the jurisdiction of the county court, and invest the circuit court with the same, and such jurisdiction does not depend upon the manner in which the transcript of the record may be made up.
    4. It matters not, so far as the practice is concerned, by whom a will is presented for probate. The proceeding is informal, without written pleadings, or notice to any one. The rights of the parties and the jurisdiction and practice of the court will not.be affected by the character in which the person acts who first offers the will for probate.
    5. A party, by appealing from an order of the probate court disallowing the probate of a will, makes himself a party to the litigation, and takes upon himself the burden of establishing the writing as a will. Persons not appealing will not need to be summoned, or otherwise notified of the re-trial in the circuit court, but they may, nevertheless, appear and take sides on the questions presented, either as co-proponents or contestants of the will; and they will have a right to introduce any proper evidence in the case.
    6. Where each of two persons takes a separate appeal from an order of the probate court refusing to probate a writing as a will, they will be regarded as proponents of the will, and all others objecting, as contestants. In such case, if one of the appellants dismisses his appeal, he may still be heard in support of the will, but it will be error for the court to allow him thereafter to manage and control the case. The other person having appealed, will have the right to control the case, and may dismiss his appeal at any stage of the hearing, even against the wishes and over the objections of the other parties.

      7. Assignment of ebbob—by whom—on appeal from order refusing probale of will. An heir of a deceased person who appears on the trial of an appeal taken by another from an order disallowing the probate of a will of the decedent,°and contests the probate, can not be said to be a disinterested party, and may assign for error the overruling of appellant’s motion for leave to dismiss his appeal.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Wilbur F. Storey, a resident of Cook county, died October 27, 1884, seized of real and personal estate of the value of several hundred thousand dollars. He left surviving, a widow, Eureka C. Storey, and Anson L. Storey, a brother, Mary E. Farrand, a sister, Mary E. Anderson, a niece, and Edward P. Chapin, a nephew, his only heirs-at-law. On November 5, 1884, Mrs. Storey petitioned the probate court of Cook county for letters testamentary, and produced a writing purporting to be the last will and testament of Wilbur F. Storey, bearing date February 1, 1881, signed by the testator, and witnessed by Austin L. Patterson, Alfred S. Trade and Frank C. Mc-Clenthen, and offered the same for probate. Mrs. Storey was, by the will, appointed executrix, and among other provisions it gave to Mrs. Storey the management and conduct of the business of publishing the “Chicago Times, ” a newspaper owned and published by the testator at the time of his death, until the same should be sold; and, subject to exceptions named, she was given the use or interest of all the testator’s estate during life, and was authorized to convert all the estate, except a certain house and grounds, into good interest bearing securities; and on condition that the testator’s estate should yield $12,000 or more per year, the executrix was directed to pay to the testator’s brother and sister, Anson L. Storey and Mary E. Farrand, each $1000 per year, for life, but if the estate should yield no more than $10,000 per year, such annuities should not be paid; and that upon the death of Eureka C. Storey, the remaining portion of the estate should descend to the testator’s heirs-at-law.
    On November 14,18S4, the subscribing witnesses appeared before the probate court, and testified as to the writing offered for probate, and as to the mental condition of the testator, and the same day, the probate court entered an order refusing probate of the alleged will, for the reason that at the time Wilbur F. Storey signed said instrument, he was not of sound mind and memory, and was not competent to make his last will and testament. From this final order Mrs. Storey then prayed an appeal to the circuit court, which was allowed, on her filing an appeal bond, with approved security, within twenty days, and which appeal she perfected by filing her approved bond in the probate court on December 2, 1884. On the last named day, Mary E. Farrand also prayed an appeal from the same final order of the prohate court, to the circuit court, and which was allowed on her entering into bond, with approved security, within twenty days from November 14, 1884, and this appeal she, on the same day, perfected, by filing in the probate court her approved appeal bond. A transcript of the whole record and proceeding in the. probate court, from the filing of Mrs. Storey’s petition for letters, on November 5, 1884, to and including the appeal bonds of both Mrs. Storey and Mrs. Farrand, of December 2,1884, was, on December 5, 1884, filed in the circuit court of Copk county, and appears to have been docketed as No. 50,828. Three days later, on December 8, 1884, another transcript of the same record, in all respects like the first, except that it did not contain the prayer for appeal, allowance of appeal, and appeal bond of Mrs. Farrand, and contained the original appeal bond instead of a copy, was, by Mrs. Storey, filed in the circuit court of Cook county, and docketed in that court as No. 50,851, where it remained upon the docket of that court as a pending appeal until December 18, 1884, when, upon motion of appellant Eureka C. Storey, her. appeal was dismissed out of that court, at her costs.

      On December 24,1884, John P. Altgeld entered his appearance in the circuit court, as the attorney of Mrs. Farrand, in the matter of the estate of Wilbur F. Storey, appeal by Mary E. Farrand, pending in that court, and docketed as No. 50,828, and. on January 6, 18S5, Mrs. Storey, by her attorneys, filed her written motion in the cause, moving the court to take the cause out of its order on the docket, and set it down for early trial, and on January 10, 1885, the appearance of Anson L. Storey was entered in the same cause, by his attorney. The motion of Mrs. Storey, of January 6,1885, was, on January 17, 1885, continued till January 26, 1885, on which last named day the court, after argument, took the motion under advisement. On February 2,1885, the court allowed Mrs. Storey’s motion, and set the cause down for trial on July 6, 1885. It will be sufficient, further, to state, that commencing with the appearance of Mrs. Storey in the appeal of Mrs. Farrand, when, through her counsel, she moved the court to advance the cause and set it down for early trial, there was contention as to whether this appeal should be conducted and controlled by Mrs. Farrand, on whose appeal it was said to be pending, or by Mrs. Storey, the executrix.
    On behalf of Mrs. Farrand it was contended, that Mrs. Storey, having dismissed her appeal from the same final order of the probate court, out of the circuit court, had no longer any standing in that court as an appellant or proponent of the will, and that the only appeal pending in the circuit court being the appeal of Mrs. Farrand, the latter occupied the position, in the circuit court, of appellant and proponent of the will, and had the right to conduct her own appeal; while on the part of Mrs. Storey it was contended, that upon an appeal of this character the case was not inter partes, but a proceeding in rem,—the only question being will or no will,— and that on appeal, as in the probate court, the executrix was the legal proponent of the will, and, as such, was entitled to -conduct the trial. The circuit court accepted and acted upon this view of the law, and consequently recognized the right of Mrs. Storey to conduct the trial in that court, over the objection of Mrs. Farrand.
    Various steps occurred in the progress of the cause, during the year 1885, not necessary to be recounted, but during the early part of 1886 the court was engaged in the trial of the cause. It should, however, be stated, that when the cause was ready for trial, counsel for Mrs. Farrand moved the court to strike the appearance of Mrs. Storey from the files, and that this motion was overruled by the court; that this ivas followed by the formal objection of Mrs. Farrand to Mrs. Storey proceeding with the evidence as the proponent of the will, and coupled with this objection was an offer by Mrs. Farrand to proceed with the conduct of the case, and to put in the evidence on the part of the appellant, as proponent of the will, and to call A. S. Trade as a witness. This objection and offer of Mrs. Farrand were overruled, upon the ground that Mrs. Storey, the executrix of the estate, was really the proponent of the will,—the record showing, that by her petition the will was presented in the probate court, and asked to be probated. To both these rulings exceptions were taken by Mrs. Farrand.
    As the trial was drawing to a close, and the evidence had been heard, Mrs. Farrand made the following motion:
    “State of Illinois, County of Cook. In the Circuit Court.

      “In the matter of the estate of Wilbur F. Storey, deceased— Appeal of Mary E. Farrancl:

    “And now comes the appellant, Mary E. Farrand, by John P. Altgeld, her attorney, and dismisses her appeal from the probate court herein, and moves that an order be entered dismissing.the said appeal at appellant’s costs.
    Mary E. Farrand,
    By John P. Altgeld, her attorney.”
    Endorsed: “Filed January 29, 1886.—Henry Best, Clerk. John P. Altgeld, Attorney. ”

      But upon the objection of counsel for Mrs. Storey, the court overruled the motion, and this ruling of the court was excepted to by both Mrs. Farrand and Anson L. Storey. Afterwards, such further proceedings were had that the circuit court found that the will propounded for probate, and dated February 1, 1881, was the last will and testament of Wilbur F. Storey, deceased, and Anson L. Storey then entered his motion to set aside the finding, grant a new trial, and in arrest of judgment. But the court overruled the motions, and rendered judgment on the finding, that probate of the will be allowed, etc. Anson L. Storey excepted to the overruling of his motions and to the rendering of the judgment, prayed and perfected his appeal to the Appellate Court for the First District, where the judgment of the circuit court was affirmed.
    Mr. W. C. Goudy, for the appellant Anson L. Storey.
    Mr. John P. Altgeld, for the appellee Mary E. Farrand, on cross-errors.
    Messrs. Dexter, Herrick & Allen, for the appellee Eureka C. Storey.
    Messrs. Trumbull, Washburns & Robbins, also for the appellee Storey.
   Mr. Justice Shope

delivered the opinion of the Court:

The constitutional provisions in respect of matters of probate, so far as concern the questions arising in this case, are contained in sections 18, 19 and 20, of article 6. The general provisions are, that “county courts shall be courts of record, and shall have original jurisdiction of all matters of probate; ” that “appeals * * * shall be allowed from final determinations of county courts, as may be provided by law;” and the special provision is, that in counties containing a given population, “the General Assembly may provide for the establishment of a probate court;” that “said courts, when established, shall have original jurisdiction of all probate matters.” The authority to establish probate courts was exercised in the passage of the act of April 27, 1877, in force July 1, 1877, (Laws 1877, p. 79,) under which the probate court of Cook county was brought into existence. The act provided, that “probate courts shall have original jurisdiction of all matters of probate;” that “the process, practice and pleadings in said court shall be the same as those now provided, or which may hereafter be provided, for the probate practice in the county courts of the State; and all laws now in force, or which may hereafter be enacted, concerning wills or the administration of estates, shall govern and be applicable to the practice in the probate courts of the State;” and that “appeals may be taken from the final orders, judgments and decrees of the probate courts to the circuit courts of their respective counties, in all matters except in proceedings on the application of executors, * * * for the sale of real estate, upon the appellant giving bond and security in such amount and upon such condition as the court shall approve, and upon such appeal the case shall be tried de novo."

Upon reference to the chapter on wills, it will be observed, section 11 provides that wills shall be probated in the county of the testator’s residence, if he had a known place of residence. Section 12 provides, that immediately upon the death of the testator, the person having possession of the will shall deliver it to the probate court of the proper county. Section 2 of the Administrations act makes it “the .duty of any person knowing that he is named or appointed as the executor of the last will and testament of any person deceased, within thirty days next after the decease of the testator, to cause such will to be proved and recorded in the proper county, or to present the will and declare his refusal to accept of the executorship ; ” and a failure on the part of the person having possession of the will, or by the executor, to present the will as directed, renders the offender liable to the estate for civil ■damages. Section 14 of the chapter on wills provides, that '“appeals may be taken from the orders of the county court ■allowing or disallowing any will to probate, to the circuit court ■of the same county, by any person interested in such will, in the same time and manner as appeals may be taken from justices of the peace, except that the appeal bond and secu.rity may be approved by the clerk of the county court; and the trials of such appeals shall be de novo.” The time and ■manner of taking appeals from judgments rendered by justices ■of the peace, as provided in section 62 of the Justice of the Peace act, is, “the party praying for an appeal shall, wdthin twenty days from the rendering of the judgment from which he desires to take an appeal, enter into bond, with security, to be approved and conditioned as hereinafter provided, in substance as follow-s : ”—and then the form of the bond, and approval by the justice, are given. Section 63 of the last named act provides, that “one or more of several plaintiffs ■or defendants may appeal” from a judgment rendered by a justice of the peace, “without the consent of the others, and all further proceedings shall thereupon be stayed, the same as if all had united in such appeal; ” and section 64 of the same act makes it the duty of the justice, when an appeal has been perfected before him, within twenty days after the approval of the bond, to file the bond “in the office of the clerk of the appellate court, together with all the papers and a transcript of his docket in the case. ” And when an appeal is perfected from the order and judgment of a county court refusing probate of a will, to the circuit court, section 13 of the chapter on wills provides, that “it shall be lawful for the party seeking probate of such will, to support the same, on hearing in such circut court, by any evidence competent to establish a will in chancery. ”

It is manifest from the foregoing, that the probate court of Cook county is vested with original exclusive jurisdiction of the probate of wills of residents of that county, and that its orders and judgments in allowing or disallowing any will to probate, must be final and conclusive, unless, on appeal, in the time and manner pointed out by the statute, they shall be reversed by the judgment of the circuit court; and although it is also manifest that the trial in the circuit court, on the appeal, is to be a trial de novo, the power of the circuit court to entertain the appeal, and to re-try the case, is not inherent in the latter court. As was said in Schooner “Constitution” v. Woodworth, 1 Scam. 511: “Appeals for the removal of causes from an inferior to a superior court, for the purpose of obtaining trials de novo, are unknown to the common law, and can only be prosecuted where they are expressly given by statute.” See, also, Edwards v. Vandermack, 13 Ill. 633; Horton v. Critchfield, 18 id. 133; Kemper v. Town of Waverly, 81 id. 278. “The principle is too well settled by repeated decisions of this and other courts, to require even a reference to authority to support it, that where a particular jurisdiction is conferred upon an inferior court or tribunal, its decision, when acting within the jurisdiction conferred, is final, unless provision is made by statute for an appeal from such decision. In no case has the circuit court inherent power to entertain appeals from inferior tribunals.” Ward v. The People, 13 Ill. 635; Skinner v. Lake View Avenue Co. 57 id. 151.

Both Mary E. Farrand and Eureka C. Storey were persons interested in the alleged will of Wilbur F. Storey. They were both named in the will, and provision was therein made whereby they were to share in the testator’s estate, and they both had the statutory right, either jointly or severally, to> pray and perfect an appeal from the order of the probate court of November 14, 1SS4, denying probate of this will, to the circuit court of Cook county; and we are satisfied, that both in respect of the time and manner of taking such appeals, there was a substantial compliance with the statute. The only duty east by the law upon the person desiring to appeal, is, that within the time specified he shall pray, and perfect his appeal by presenting and securing the approval by the probate judge, or by the clerk of the probate court, of the requisite appeal bond, conformably with the order of the court allowing the appeal; and when he has done this, he has done all that the law requires of him to divest the probate court of, and invest the circuit court with, jurisdiction of the matter appealed. It is, doubtless, the duty of the clerk of the probate court to prepare the transcript of the record in his court, and to file the same in the circuit court; and in case of appeals by several from the same final order of the probate court, as was the case here, no reason is perceived why the clerk may not embody in a single transcript the several orders and appeal bonds, just as was done in the transcript filed December 5, 1884. The preparation and filing, however, of a separate transcript, if desired, for any reason, by one or more of the parties appealing, could in no way change or alter the legal effect produced by the giving of the appeal bonds. In either event, the one court would lose and the other court acquire jurisdiction.

It must, however, be said of this case, that while the legal effect of the giving of the separate appeal bonds, in conformity with the orders of the probate court allowing Mrs. Farrand and Mrs. Storey their several appeals, was, to take from the probate court that jurisdiction it primarily possessed, and to stay the execution of its judgment, and, for the time being, to hold in abeyance the question of the probate of this offered will, a change was wrought in the legal character of the proceedings thereafter to be taken, and in the relation of the parties. While the matter of the probate of this offered will remained in the probate court, it was in form a proceeding in the nature of a proceeding in rem. The law made it the imperative duty of any person having in his possession this writing purporting to be the last will and testament of Wilbur F. Storey, to straightway exhibit it before the probate court. The record discloses, that when this writing had been completed by the signing of the attesting witnesses, the testator delivered it, together with an ante-nuptial contract between the testator and Eureka C. Pearson, (now Eureka C. Storey,) to one of those witnesses, Austin L. Patterson, for safe keeping, and, so far as we have been able to learn, this offered will remained in the possession of Patterson until Mr. Storey’s death. If this is so, it was, under the law, Patterson’s duty to have presented this paper to the probate court. Had he done so, instead of permitting Mrs. Storey to offer it for probate, precisely the same legal effect would have followed that did follow its presentation to the court by her, and the probate court would have done what it did,—call before it the attesting witnesses, and inquire of them as to the time and manner of the execution of the instrument, and whether, in the belief of the attesting witnesses, the person executing the same was, at the time of its execution, “of sound mind and memory.”

No inconsiderable part of the argument of counsel for appellees, in this court, is taken up in pressing upon us the controlling significance of the fact that this instrument was offered or “propounded” in the probate court by Mrs. Storey; and yet, as we have seen, neither the power and jurisdiction of the probate court, nor the course of proceeding in that court, rvas in the slightest .degree affected by that fact. The same poAver and jurisdiction of the probate court in the premises would have been invoked, and the same course of proceeding Avould have ensued, if Mr. Patterson, a person having no interest in the will, had obeyed the plain behests of the law, and himself presented the Avriting for probate.

While the matter of the probate of this offered Avill remained in the probate court, it did not take on, nor could it, the form and semblance of a legal contest betAveen hostile parties. The thing before the court, and about Avhich it was to judicially inquire, was a paper, in form a testamentary disposition of property. If it Avas a will, certain legal consequences Avould follow,—the estate of the testator would go to the beneficiaries therein named. If it was no will, certain other legal consequences would follow,—the estate of the decedent would not he affected thereby. And while it would seem that there must he, in every such case, two classes of persons (beneficiaries on the one hand, and heirs-at-law on the other,) whose interests might, though not necessarily, be hostile, nevertheless, the proceedings in the probate court, when a writing is offered for probate as a will, are, under our statute, informal, without written pleadings, without notice to any of the persons who may be interested, either as beneficiaries or heirs-at-law, and of a summary character, and in form, if not in substance, wholly dissimilar to a legal contest between hostile parties. If, .then, neither the power and jurisdiction of the probate court, nor the form and course of proceeding in that court, nor the form and character of the judgment that may be rendered by the court in such case, can he affected by the person or the character of person who may first offer an alleged will for probate, as we have seen is the case, we are clearly of opinion, that Mrs. Storey, by reason @f the fact that she offered this will for probate, and, as a consequence thereof, neither enlarged her own rights nor restricted the rights of any other person interested in the will, nor did she thereby become any more a party to the proceeding in the jnobate court than any and every other person interested in the will. She, and all the other persons interested in the will, were parties to the proceeding, in the sense that she and they alike would he hound by the orders and judgment of the probate court in the premises, until the same should be reversed on appeal, but in no other sense.

But while this is true, when Mrs. Farrand and Mrs. Storey perfected their separate appeals from the order of the probate court refusing probate of this offered will, they took on a new character,—they made themselves parties appellant in the circuit court, and occupied a position upon the record of hostility, for the time being, to all other persons interested in the estate. By their appeal, they said, in legal effect, this is the will of Wilbur F. Storey, deceased; and all other persons interested in the will, by failing to appeal, said, in legal effect, it is not the will of Wilbur F. Storey, deceased,—and upon that issue, Mrs. Farrand and Mrs. Storey took upon themselves the burden of establishing the offered writing as a will; and although, after appeal, the persons not appealing need not be summoned or otherwise notified of the re-trial to be had in the circuit court, they would nevertheless he parties, and might, if they should choose, appear therein, and array themselves on either side of the contest,—as co-proponents, or contestants,—and, on the trial, it would he the duty of the circuit court to receive and consider any evidence offered by any interested party, competent to establish a will in chancery. Heirs of Critz v. Pierce, 106 Ill. 167.

While, therefore, we hold, that in a case of this character, under our statute and the recognized course of judicial proceeding in this State, the proceeding in the county court is in the nature of a proceeding in rein, we also hold, that, upon appeal, the character of the proceeding is changed, in so far as that, as between the persons appealing and those who may thereafter appear and unite with them, and all other interested persons, the proceeding is one in the nature of a proceeding inter partes; and that the persons appealing become, by virtue of their appeal, proponents of the will, and those afterwards appearing and uniting with them become co-proponents, while all other persons interested in the estate and opposing the probate of the will are to be regarded as contestants. When, however, Mrs. Storey voluntarily dismissed her appeal out of the circuit court, she ceased to occupy the position of proponent bj’ virtue of appeal, and it became necessary for her, if she desired to be heard in that court in support of the will, to array herself along with Mrs. Farrand, and under the latter’s appeal.

One error committed by the circuit court was, in allowing Mrs. Storey, after she had dismissed her own appeal, to assume, over the objection of Mrs. Farrand, entire control of the latter’s appeal. Had Mrs. Storey retained her appeal in the circuit court, she might rightfully have claimed an equal voice in the conduct of the case and trial, with her co-appellant. It would be, manifestly, so unjust, and so at variance with the recognized course of procedure in this State, to take from an appellant, through whose affirmative action, and upon whose sole pecuniary responsibility, an appeal had been perfected, all control of such appeal in the appellate court, and give it to one who had voluntarily dismissed herself as an appellant in the same matter, that we can not give our sanction to the practice. Mrs. Storey’s right to appear as co-proponent and offer evidence to sustain the will, is not questioned. It was entirely competent for her, or any other person interested in the estate, to call and introduce such witnesses as she might desire, to sustain the will, and to be heard by her counsel as such co-proponent, while the cause was pending in the circuit court.

We have shown, that under the constitution and laws of this State the probate of wills is confided, in the first instance, to the probate court; that that court is given original and exclusive jurisdiction, and that its orders and judgments are final and conclusive upon all parties interested in the allowance or disallowance of probate of a will, until reversed in the circuit court, on appeal; that the jurisdiction acquired by the circuit court to re-try the question of the probate of a will is not inherent in that court,—is not concurrent with the probate court,—but arises and exists solely by virtue of an appeal from the final orders and judgment of the probate court. And unless we were prepared to depart from a line of decisions in this State, the reasonableness and propriety of which have not till this present case been seriously questioned, but long acquiesced in by both bar and courts, we shall be compelled to hold, that a plaintiff in error and an appellant on appeal may, at any time before judgment, dismiss his writ of error or his appeal, and may do so over the objection of his adversary ; and this we must do, notwithstanding the line of decisions in other States to which our attention has been'called, where, in the probate of a will, a contrary doctrine has been announced. When these cases come to be closely examined, in connection with the judicial system existing in those States, a marked distinction from our own is observable. This may be illustrated in the cases decided in the courts of North Carolina and Missouri, where the court of first instance has no jurisdiction to try a contest arising on the probate of a will. In every sitch case the cause must be transferred to a superior court, which alone has the power of trial and adjudication. And we can understand how, under such a system, no party in interest,-whether he be the person at whose instance the contest arose, and who may have been instrumental in bringing about the transfer to the superior court or not, should not be permitted to oust that court (in legal effect the court of first instance) of its jurisdiction, or arrest the course of its proceeding; for, although in form an appellant, he is not, by perfecting his appeal from the lower court, securing a new trial, or appealing from an order or judgment which otherwise would stand as a final judgment, binding and conclusive upon him, but his appeal is for a first trial.

Without carrying our examination of the cases further, we are content to rest our decision in this case upon what we conceive to be the recognized principle and practice, and the previous decisions of this court, in analogous cases. The statute has expressly placed appeals of this character upon the same general ground as appeals from justices of the peace to the circuit court, by providing that they shall be taken and perfected in the same time and manner as appeals from justices of the peace. Bacon v. Lawrence, 26 Ill. 53, was an appeal from a justice of the peace. Bacon recovered below, but nevertheless appealed, and in the circuit court moved to dismiss his appeal. Lawrence entered a cross-motion for leave to join in the appeal, and in support, represented that he had a meritorious defence to the plaintiff’s cause of action, and that he would himself have appealed if the plaintiff had not done so. In that case it was said: “The appellant had an undoubted right to dismiss his appeal. If the appellee was not satisfied with the judgment of the justice of the peace, he should himself have taken an appeal. By not doing so he acquiesced in that judgment, and must now be content with it. Taking an appeal by one party does not deprive the other of the right to do the same thing. ” In Shaffer v. Currier, 13 Ill. 667, also an appeal from a justice of the peace, wherein the plaintiff recovered below and appealed, this court held that the appellant “had an undoubted right to dismiss the suit.” And in Hancock County v. Marsh, 2 Scam. 491, which was an appeal by Marsh from the county commissioners’ court to the circuit court, wherein appellant moved to dismiss his appeal, it was said: “The appellant in appeal, and the plaintiff in a writ of error, may always dismiss their suit before a decision on the merits; and the effect of such dismissal is to leave the parties where they were before the appeal was taken or the writ of error brought. ” See, also, Willis v. Spraggins, 3 Gratt. 555; Lake's Appeal, 32 Conn. 331; Lancaster's Appeal, 47 id. 248.

But we can not conclude this branch of the case without reference to some of the arguments pressed upon our consideration by counsel for appellees. It is by them contended, with great earnestness, that Mrs. Farr and ought not to be permitted to withdraw her appeal from the circuit court after Mrs. Storey had appeared and produced evidence establishing the validity of the will, and thereby forever defeat the probate of this will and the intention of the testator. To this it must be answered: If such would he the legal consequences, it does not lie in the mouth of Mrs. Storey to complain. The law gave her the undoubted right to appeal from the decision and judgment of the probate court denying probate of this will, in the probate of which she had obviously so large a pecuniary interest, and this right she understood and exercised; and the same law gave her the undoubted right to dismiss her appeal, and thereby, so far as she was concerned, leave in full force the judgment of the probate court, and this right she also understood and exercised ; and if it be true that by dismissing her appeal she has put it in the power of Mrs. Farrand to exercise the same right under the law of dismissing her appeal, although the consequences stated may follow, we are unable to perceive upon what principle this court, whose only province it is to declare the law, can be asked to declare one rule for Mrs. Storey and another for Mrs. Farrand, in the same cause and in respect of the same subject matter.

■■ It is further contended, that appellant Anson L. Storey could not assign for error the ruling of the circuit court denying Mrs. Farrand’s motion to dismiss her appeal, nor the judgment of the circuit court admitting this will to probate, nor the judgment of the Appellate Court affirming the judgment of the circuit court, upon the ground that the motion denied was not his motion, and that the errors complained of worked him no injury. Conceding, as we do, the rule that a party will not be heard to complain of an error that works him no injury, it can have no application to appellant. Although not an appellant from the judgment of the probate court, he formally appeared in the circuit court, and became in fact, as he was in law, a party; and it seems to us, we need only say, that as an heir-at-law of Wilbur F. Storey it is conceded, and if it was not is abundantly shown by the evidence, that his interest in the estate will be largely in excess “of the provision made for him by this will, which we deem quite sufficient to give him a standing in court as an appellant injuriously affected by the errors assigned.

For the reasons stated, the judgment of the Appellate Court must be reversed, and the cause remanded to the circuit court of Cook county, with directions to set aside its order probating said alleged will, and to sustain the motion of Mary E. Far-rand, and dismiss her appeal at her costs, as of the day the motion was made by her.

Judgment reversed.

Scott, C. J., and Craig, J., dissenting.


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    Louisa McCall et al. v. Henry R. Lee.

      Filed at Springfield March 23, 1887.

    1. Administration or estates—keeping claim, upon the docket—reinstating same. A claim against an estate was filed in proper time, of which filing the personal representative had due notice, but the clerk omitted to continue and keep the case and claim upon the docket from term to term. An order re-instating the claim was entered, after motion duly made, and ten days’ notice of the motion duly served upon the executors. Upon objection that the claim was improperly re-instated, it was held, that having been filed in time, it made no difference whether the clerk kept it on the docket or not, so long as there was no order in any way disposing of it; so the objection was not well taken.
    2. Same—amendment, by changing the name of the claimant. Where a claim has been filed in the county court in the time required by law, that court may properly allow an amendment of the claim filed, by changing the name of the claimant, even after the time limited for the filing of claims, when the effect is not to introduce a new and different cause of action. When no new cause of action is introduced, the courts will allow amendments liberally, for the purpose of avoiding the bar of the Statute of Limitations.
    3. Same — classification of claims when allowed—whether essential. On appeal from the county court, a judgment of the circuit court, in allowing a claim against an estate, will not be erroneous, merely because the order fails to fix the class to which the claim belongs. That court has the power to direct the classification of a claim allowed by it, but it is not error for it to fail to do so. The statute fixes the class to which it belongs. . The direction that it be paid in due course of administration, means that it shall be paid as, and pro rata with,.other claims of the same class, out of the assets administered.
    4. Same— considering the equities, in allowance of claim. The county court, in considering claims against estates, is not limited to the technical legal rights of the parties, but may act upon their equities.
    5. Estate in personal property—life estate, with limitation over. Personal property may be given, by contract or by will, to one person for life, with remainder over to another after the life interest therein has expired; and such limitation over is good as to every species of chattels of a durable nature.
    6. A husband, as the sole heir of.his deceased wife in her personal estate, consisting mostly of notes, and as heir of one-half her real estate, conveyed and transferred to his wife’s mother one-half of the land and the personal estate for her life, under a written agreement that at her death the interest so transferred to her should go to the husband, and the mother collected the notes and converted the property into money, and by her will gave all her property to others. It was held, that the husband was entitled to have the amount of such property so converted by his mother-in-law, allowed as an equitable claim against the estate of the latter.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Fulton county; the Hon. John C. Bagby, Judge, presiding.
    Messrs. Gray & Waggoner, and Mr. D. McCulloch, for the appellants:
    There was no debt created which could be allowed against the estate, but, if anything, there was only an intermixture of property.
    ' If the contract has any meaning, it is, that at the death of Catherine Dwire that part of her daughter’s estate which she had received of appellee was to go back to him. The contract did not require that Mrs. Dwire, or her representatives, should pay for the land, the piano, spread and stool, the clothing, jewelry, etc.
    There could be no trover and conversion, because, while Mrs. Dwire lived, the notes, etc., were hers, and she could do with them as she pleased. If, after her death, appellants had converted any notes belonging to appellee, they would have been responsible personally. If Mrs. Dwire wasted the principal, his remedy was an action on the case, which ceased at her death.
    The cause was erroneously re-instated upon the docket of the county court, there being a discontinuance.
    The judgment was erroneous. It should have been classified. (Darling v. McDonald, 101 Ill. 370.) It should have been ordered to be paid out of subsequently discovered assets. Wallace v. Gatchell, 106 Ill. 316; Russell v. Hubbard, 59 id. 335.
    The substitution of the name of appellee as plaintiff, was the commencement of the suit, as to him, for his alleged cause of action, which is for a breach of the contract between him and Catharine Dwire, and a new count necessarily should have been added to state his cause of action. Railroad Co. v. Cobb, 64 Ill. 128; Dickson v. Railroad Co. 81 id. 216.
    The claim filed by McKee could not be maintained upon the proofs requisite to sustain appellee’s ease. The allegations and proofs would not correspond. Brock v. Slaten, 82 Ill. 282; Lill v. Brant, 1 Bradw. 266.
    Any defence available against appellee could only be relied upon from the time he became the plaintiff. Thomas v. Fame Ins. Co. 108 Ill. 100.
    Messrs. McKenzie & Calkins, for the appellee:
    A contract payable upon the party’s death, may be enforced against his estate.
    The claim was filed within the two years, in the name of Thomas McKee, administrator of Kate Lee’s estate, but was filed for the benefit of appellee. The amendment, by substituting the name of appellee, was proper. People v. Abbott, 105 Ill. 588;
    As to the right to make the amendment, see Rev. Stat. chap. 110, see. 23; McDowell v. Town, 90 Ill. 359; Insur

      ance Co. v. Mueller, 87 id. 22; Coal Co. v. Taylor, id. 590; Challenor v. Niles, 78 id. 78.
    When no new cause of action is introduced, courts will allow amendments liberally, on purpose to prevent the running of the Statute of Limitations. Railroad Co. v. Cobb, 64 Ill. 140; Railroad Co. v. Phelps, 4 Bradw. 238; Insurance Co. v. Batchen, 6 id. 638.
    The county court never lost jurisdiction of the case. Barbero v. Thurman, 49 Ill. 374; Housh v. People, 66 id. 178.
    The judgment is not invalid for failing to classify the claim, as the law fixes the class.
    Chattels may be limited over, by way of remainder, after a life in them is created. This limitation over in remainder, is good as to every species of chattels of a durable nature. 2 Kent’s Com. 352; 2 Sharswood’s Black. 398; Smith v. Clever, 2 Vern. 59; Hyde v. Parrat, 1 P. Wms. 1; Porter v. Tourney, 3 Ves. 311; Moffatt v. Strong, 10 Johns. 12.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is a claim, filed April 11,1881, in the county court of Fulton county by Thomas McKee, as administrator of the estate of Kate H. Lee, deceased, against the estate of Catherine Dwire, deceased. Catherine Dwire died testate on April 24, 1879, and letters testamentary were issued to the appellants, as executors of her will, on May 10, 1879.

By agreement between the claimant and the executors, the case was continued, until a case between the same parties, then pending in the circuit court of Knox county, .should be finally disposed of. The latter case was decided in March, 1883, and is reported, as The People, for use, etc. v. Abbott et al. 105 Ill. 588. By reference thereto, the facts and questions involved will fully appear without repetition here.

The claim against the Dwire estate was permitted to rest, and no steps were taken in reference to it, until August, 1883, when it was re-instated by the county court, and, upon hearing, disallowed. An appeal was taken to the circuit court, where the case was tried before the judge without a jury, and a judgment was rendered, allowing the claim. This judgment has been affirmed by the Appellate Court, and an appeal from that court brings its judgment of affirmance before us for review.

It is objected, that the county court erred in allowing the claim to be re-instated, inasmuch as the clerk had omitted to continue and keep the case and claim upon the docket from term to term. The order, re-instating the claim, was entered after motion duly made, and ten days’ notice of such motion, duly served upon the executors. The executors must have had notice of the original filing of the claim, as they agreed to a postjDonement-of its consideration, until after the determination of the Knox county case. The claim, having been filed in time, it made no difference whether the clerk kept it on the docket or not, so long as there was no order in any manner disposing of it. UjDon the authority of Barbero v. Thurman, 49 Ill. 283, the objection to its re-instatement is not well taken.

In The People, etc. v. Abbott et al. supra, this court intimated, that the real party in interest in the prosecution of the claim was Henry K. Lee, the appellee herein, and not Thomas McKee, administrator. Accordingly, after the cause was reinstated, the county court, upon application for that purpose and after due notice, permitted an amendment to be made, substituting the name of appellee, as plaintiff, in the place of that of McKee, administrator. It is charged, that this amendment was improper; that its allowance amounted to the filing of a new claim by a new party, after the two years, limited for the filing of claims, had expired, and that, therefore, the circuit court erred in directing the judgment in appellee’s favor to be paid out of the assets of the estate in due course of administration, instead of directing it to be paid out of subsequently discovered or non-inventoried assets.

Section 23 of the Practice act permits' amendments, “introducing any party necessary to he joined as plaintiff,” and in any matter, that “may enable the plaintiff to sustain the action for the claim, for which it was intended to be brought, ” and provides, that “the adjudication of the court, allowing an amendment shall be conclusive evidence of the identity of the action. ” (Starr & C. Stat. chap. 110, page 1787.) In this case, the amendment did not make a new cause of action. .The claim, as originally filed, was for the amounts of certain notes and other property, turned over by appellee to Mrs. Dwire in her lifetime. After the substitution of appellee’s name, the claim was still for the same notes and property. April 11, 1881, the day on which it was filed, was within the two years. Where no new cause of action is introduced, courts will allow amendments liberally for the purpose of avoiding the running of the statute. We think that the amendment was properly allowed on the authority of the following cases: McDowell v. Town, 90 Ill. 359; Litchfield Coal Co. v. Taylor, 81 id. 590; Teutonia Life Ins. Co. v. Mueller, 77 id. 22; Challenor v. Niles, 78 id. 78.

It "is said, that the judgment of the circuit court is erroneous in not determining the class, to which appellee’s claim belongs, in accordance with section 70 of chapter 3 of the Be vised Statutes. The circuit court undoubtedly has the right to direct the classification of claims, (Darling et al. v. McDonald, 101 Ill. 370,) but we do not think, that the failure to do so, in this case, makes the judgment erroneous. The statute itself fixes the class, to which the claim belongs, and the direction, that it be paid in the “due course of administration, ” means, that it shall be paid as, and pro rata with, other claims of that class, out of the assets administered.

The claim itself, upon which the judgment has been rendered, is attacked as illegal. Mrs. Kate H. Lee, wife of appellee, and daughter of Mrs. Dwire, died December 21, 1876, intestate, and without children, and being the owner of a piece of land in Iowa, valtied at $1600, and «$14,000 worth of personal property, consisting mostly of notes against various parties. Appellee, her husband, was, at her death, the owner, by inheritance, of all her personal property, and of one-half of her land, together with dower in the other half. In February, 1877, he turned over to Mrs. Dwire one-half of the personal property, so inherited by him from his wife, and executed to her a quitclaim deed of the Iowa land, thereby conveying to her the half thereof, owned by himself and relinquishing to her his dower in the other half, which she owned, as heir of her daughter. There was no other consideration whatever for this transfer from appellee to his mother-in-law, except the following agreement, which was executed between them:

“Article of agreement between Henry R. Lee, of Galesburg, and Mrs. Catherine Dwire, of Canton:
“It is agreed and fully understood between ourselves, viz., Mrs. Catherine Dwire and Henry R. Lee, that the property, both real and personal, belonging to Mrs. K. R. Lee, deceased, in her own right, shall be equally divided between Mrs. Catherine Dwire, her mother, and Henry R. Lee, her husband, said division to take place after all her debts are fully paid, including 'funeral expenses. And it is' further agreed, that in case Mrs. Catherine Dwire should die first, her one-half interest should go' to" Henry R. Lee; and if Henry R. Lee should die first, then his one-half interest shall go to Mrs. Catherine Dwire. We hereunto set our hands, this eighth day of January, 1877.
Henry R. Lee,
Catherine Dwire.”

Much of the property, so obtained by her from appellee, Mrs. Dwire converted into money during her lifetime, and, after her death, the remainder, undisposed of, was inventoried by her executors, as part of her estate. In the inventory, introduced in evidence, the land is not mentioned. Upon demand made of them in writing by appellee, the executors refused to pay over to .him any of such moneys, or to deliver to him any of such property, but retained the same as belonging to the Dwire estate. It is admitted by counsel for appellants, in their brief, that at the time, when the above agreement was made, Mrs. Dwire executed a will, devising all her estate, except her homestead, to the-appellee. This will was evidently made for the purpose of more fully carrying out the agreement. The will, so made, was, however, found to be missing after Mrs. D wire’s death, and, instead thereof, a will, made by her as early as March 28, 1877, was produced and admitted to probate, by the terms of which she left her whole estate to her sister, her niece and her two nephews. These circumstances would tend to show an intended conversion of the property on her part in her lifetime. It is the will of March 28,1877, of which appellants were appointed executors.

/ The property, delivered by appellee to Mrs. Dwire in pursuance of the foregoing agreement, is the same property, for the amount of which the claim, now under consideration, has been filed. The agreement was in effect a gift of the use of the property to Mrs. Dwire during her lifetime. Chattels may be limited over by way of remainder after a life estate in them is created. Personal property may be so limited by will. The limitation may also be by deed to one person for life, with remainder over to another after the life interest in the chattel has expired. This limitation over in remainder's good as to every species of chattels of a durable- nature.) 2 Kent’s Com. 352; 2 Blackstone, 398; Smith v. Clever, 2 Vern. 59; Hyde v. Parrat, 1 P. Wms. 1; Porter v. Tourney, 3 Ves. 311; Moffatt v. Strong, 10 Johns. 12; Trogdon v. Murphy, 85 Ill. 119.

It follows, that, during Mrs. Dwire’s life, she had a right to use the property in question, or the money realized from the sale of it and from the collection of the notes. When she died, it was to go to appellee; it belonged to him, when her life interest in it ended. Since her death, it has passed into the hands of her executors and become mingled with the property of her own estate. The executors refuse to recognize the interest of appellee in any part of it. The county court, in considering claims against estates, is not limited to the technical legal rights of parties, but may act upon their equities./ Under these circumstances, we do not see why the appellee_has not a lawful claim against the estate. ^

The questions of fact, which counsel press so urgently upon our attention, are settled by the judgment of the Appellate Court, and we can not review them.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

Mr. Justice Shope, having partially heard this cause on the circuit, took no part in the consideration in this case.


author: Mr. Justice Mulkey

text:
    The City of Springfield v. Emily Green et al.

      Filed at Springfield March 23, 1887.

    1. Special taxation for local improvements—according to frontage— constitutionality. An ordinance requiring the cost of improving a street or sidewalk to be levied by special taxation upon real estate abutting thereon, in proportion to the frontage of the several lots, under the present constitution is valid.
    2. Same—as to corner lots—considered as abutting on the several streets by which bounded. It can not be said, as matter of law, that an ordinance requiring lot owners to pay for the improvement of the street or streets by which their lots are bounded, is so oppressive and unjust to the owners of comer lots as to justify the courts in declaring the same void.
    3. An ordinance of a city for the paving of certain streets, directed that the special tax to defray the cost thereof should be “levied, assessed and collected upon and from the real estate, lots, parts of lots and tracts of land abutting upon the line of said streets so ordered to be paved, in proportion to the frontage thereof upon the streets, or parts of streets, and alleys, ordered to be paved:” Held, that a lot, the side of which was bounded by a street so ordered to be paved, was to be regarded as abutting upon the same, as well as one the end of which was so bounded.
    4. Same—as to adjoining lot not abutting on the street. Commissioners appointed to assess the cost of improving a street upon the lots abutting on the same, are not authorized to extend their assessment of such a lot upon an adjoining lot of the same owner which is not bounded by the street. Such party’s assessment should be confined to his lot which borders upon the street to be improved.
    5. Same—ascertainment of benefits—not applicable in cases of special taxation. Where a local improvement is sought to be made by a special assessment, the owners of the property assessed have the right to have the question of benefits passed upon by a jury; but no such right is given in a case of special taxation of contiguous property.
    6. Same—whether ordinance embraces more than one improvement. An ordinance for the paving of several streets and alleys, and parts of streets, with the same materials and in the same way, is not obnoxious to the objection that it embraces more than one improvement, even though there may be a difference of a few feet in the width of some of the streets, and the cost of paving certain railway tracks is excluded.
    Appeal from the Comity Court of Sangamon county; the Hon. J. H. Matheny, Judge, presiding.
    Mr. J. M. Grout, and Messrs. Greene, Burnett & Humphrey, for the appellant:
    It is first objected, that the ordinance is void, because the burdens are not equally distributed, and the question of benefits ignored. This raises the question of the difference between a special assessment and special taxation, decided in the following cases; Craw v. Tolono, 96 Ill. 255; White v. People, 94 id. 604; Enos v. Springfield, 113 id. 65; Fagan v. Chicago, 84 id. 231; Galesburg v. Searles, 114 id. 217; Watson v. Chicago, 115 id. 78; Bigelow v. Chicago, 90 id. 53.
    It is objected that the ordinance embraces more than one improvement. The paving of the street is but a single improvement. Ricketts v. Hyde Park, 85 Ill. 110; People v. Sherman, 83 id. 167; Prout v. People, id. 155; Watson v. Chicago,
      115 id. 78; Parker v. Challis, 9 Kan. 155; Challis v. Parker, 11 id. 394.
    The third objection, which we desire to notice, is, that the assessment is void, because certain of these lots, which are corner lots, do not abut or front upon the streets for the improvement of which a special tax is assessed against them. That this objection is untenable, see Morrison v. Hershire, 32 Iowa, 271; Des Moines v. Dorr, 31 id. 39; City of Lawrence v. Killam, 11 Kan. 499.
    The Iowa Court has gone to the extent of holding, that under an ordinance for paving the streets lying along the side and end of a lot, by frontage, one-fourth of the intersection may be charged against the corner lot. Wolf v. Keokuk, 48 Iowa, 129. See, also, 2 Desty on Taxation, 1247.
    Messrs. Allen, Brown & Brown, and Mr. C. A. Keyes, for the appellees:
    While the city may proceed by special assessment or by special taxation, yet the power must be strictly pursued. Webster v. People, 98 Ill. 343.
    If special taxation be adopted, no lot can be taxed more than the cost of the improvement in front thereof. A special tax can not be levied upon the property of one locality to pay the cost of an improvement made along or in front of property situate in another locality.
    A corner lot has no more feet front than any other lot of equal size. The term “abutting” is used in reference to that which touches a lot at the end. 1 Bouvier’s Law Dictionary, “Abuttal.”
    Mr. L. H. Bradley, also for the appellees.
   Mr. Justice Mulkey

delivered the opinion of the Court:

In February, 1886, the city of Springfield adopted an ordinance providing for the pavement of a large number of its streets and alleys, particularly specifying the materials to be used, and the manner in which the work was to be done. The ordinance directed the expenses of paving the intersections of the streets and alleys to be paid by general taxation, and that the cost of paving such portions of them as were occupied by railways should be defrayed by a special tax, to be levied upon the right of way of the owners of such railways. The balance of the expenses of the improvement was directed to be raised by a special tax, to be levied and assessed upon the lots and real estate abutting upon said streets and alleys. The assessment, as made by the commissioners appointed under the ordinance, was, on application to the county court of Sangamon county for that purpose, duly confirmed, except as to certain lots belonging to appellees. As to these lots, the court held some of the objections to the assessment well taken, and thereupon entered an order annulling the same and dismissing the proceeding, to reverse which the city has appealed to this court.

Able and elaborate arguments have been filed in the case, on behalf of appellees, which strike at the very foundation of the entire assessment. They review, with great force of reasoning, the claim or contention that an ordinance requiring the cost of improving a street or sidewalk to be assessed upon the real estate abutting thereon, in proportion to the frontage of the several parcels of such real estate, is obnoxious, if not to the letter, at least to the spirit, of the constitution, and consequently void. The following provisions of the constitution are referred to as sustaining the claim and contention in question: Sections 1, 2 and 19, of article 2, and sections 1, 2 and 6, of article 9.

That this objection would have been good under the constitution of 1848, is not denied. (City of Chicago v. Larned, 34 Ill. 203.) But that the reverse of this is now the rule, where the cost of the improvement is to be raised by special taxation, is conclusively shown by the following authorities: White v. The People ex rel. 94 Ill. 604; Craw v. Tolono, 96 id. 255; Bigelow v. Chicago, 90 id. 53; Fagan v. Chicago, 84 id. 234; Enos v. Springfield, 113 id. 65; Galesburg v. Searles, 114 id. 217; Watson v. Chicago, 115 id. 78; City of Sterling v. Galt et al. 117 id. 15. The change in the ruling upon this question is based, primarily, upon the difference between the present constitution and the constitution of 1848, and also, in part, upon the construction which has been placed upon our present statute relating to local improvements by municipal corporations. The construction in question recognizes a distinction between a special assessment and special taxation, in respect to the right of the owners of the property assessed to have the question of benefits passed upon by a jury. In the former case, such right is held to be given by the statute, while in the latter it is denied.

This whole matter is so fully discussed in the cases above cited, wherein will be found all the reasons for and against the rule as now held by this court, that it would be but a mere idle waste of time to go over the ground again, and we therefore decline to do so. If this were a new question, the writer, and, perhaps, other members of the court, would take the view of appellees upon this question. (White v. The People ex rel. supra.) But it is not. If it be possible to settle any question by repeated decisions all the same way, the present one surely ought to be regarded as finally and irrevocably settled.

The ordinance is also assailed on the ground that it embraces more than one improvement. We do not think this is true, in point of fact. While many streets and parts of streets are embraced in the scheme of improvement adopted by the city, yet we regard them all as but parts of the same improvement. The city authorities, in adopting the ordinance, must have found, as a matter of fact, that these streets and parts of streets were so similarly situated, with respect to the improvement proposed to be made, as to justify treating them as parts of a common enterprise and single improvement, and from the record before us we think they were justified in doing so. They were all to be paved with the same material and in the same way, and the fact that there was a-difference of a few feet in the width of some of them, and that the cost of paving the railway tracks in others was to be excluded from the estimate, should, in our opinion, make no difference in this respect. The similarity of the improvement proposed to be made, and the situation of the property to be-assessed, with respect to it, afford a more satisfactory test as to whether they might all be embraced in a common scheme as one imjorovement, than their actual connection or physical contact with one another. It is true, expressions are to be found in one or two cases looking in a contrary direction; but these expressions were made in arguendo, merely, and not for the purpose of laying down any rule on the subject. So far as the actual decisions of this court go, they support the contrary view, and are in perfect harmony with what is here said. Prout v. The People, 83 Ill. 155; The People v. Sherman, id. 167; Ricketts v. Hyde Park, 85 id. 110.

It is next objected that the lots whose sides, only, are bounded by the streets sought to be improved, do not, within the meaning of the ordinance, abut upon such streets. The-ordinance directs that the tax in question shall be “levied, assessed and collected upon and from the real estate, lots and parts of lots, and tracts of land abutting upon the line of said streets so ordered to be paved, in proportion to the frontage thereof upon the streets, or parts of streets, and alleys-ordered to be paved, as aforesaid.” An examination of the plat of the city shows that the sides of all the lots involved in the present appeal are bounded by some one of the streets-ordered to be paved, and the contention of appellees is, that a lot, the side of which only touches or is hounded by a street, can not, with any propriety of speech, be said to abut thereon— that the end of a lot only abuts, while the side adjoins. Doubtless, the highest degree of accuracy in the use of language would require the word to be used in the restricted sense contended for; but that degree of accuracy, it is well known, is not generally attained, and is hardly to be expected, in the framing of statutes or city ordinances. If such strictness in the use of language were applied by the courts in construing ordinances, doubtless the purpose with which many of them are passed, would be defeated. Whenever the meaning of a word, as used in a statute or ordinance, becomes the subject of controversy in a legal proceeding, the ascertainment of its strict primary signification is not a matter of so much importance as it is to discover the sense in which it ivas used by the legislative body, for the latter must control, although the word has been used without proper regard to its appropriate and primary meaning. Now, while, strictly speaking, a lot whose end is bounded by a street is said to abut upon it, while one whose side is thus bounded is said to adjoin it, yet it is well knowm these words are often used in the same sense, and indiscriminately.

The question, then, is presented, in what sense did the city council use the word “abutting, ” as it occurs in the ordinance. The whole of the ordinance considered, we have no doubt that the -word was intended to apply to lots whose sides as well as ends were bounded by the line of the streets to be improved, and that where the streets in front and at the side were both to be paved, it was the intention of the council that the corner lot should bear one-half of the expense of the improvement in front of the side as well as of the end of the lot. Any other construction of the ordinance w'ould leave no provision whatever for paying for the pavement of those parts of the streets directed to be improved, which lie in front of the sides of lots located on the line of said streets. We are not prepared to impute such an intention as that to the city council. That the construction we have given the ordinance in this respect fully accords with ,the legislative intent, wa have no doubt whatever.

The question then resolves itself into this: Can we say, as matter of law, that an ordinance which requires lot owners to pay for the improvement of the street or streets by which their respective lots are bounded, is so oppressive and unjust to the owners of corner lots as to justify a court in declaring the ordinance void. The tax on the corner lots, in the present scheme, is, on an average, a fraction over three times as much as it is on the other lots; yet, after all, the difference in value and advantages between corner lots and those which are not, may, in a great degree, if not entirely, make up for the inequality in the tax. Doubtless, these matters were all taken into consideration by the city counqil in framing the ordinance, and, .everything considered, we are unable to say the ordinance is so manifestly oppressive and unjust as to render it void.

( The view we have taken on this question, being the only one which has given any serious trouble, is strongly supported, if not fully sustained, by the following authorities: City of Lawrence v. Killman, 11 Kan. 499; City of Des Moines v. Dorr, 31 Iowa, 89; Morrison v. Heishire, 32 id. 271.

It appears that the owners of some of the lots which were taxed only for the improvement of the street fronting on their sides, also owned the adjoining lot or lots, which the commissioners improperly assessed together with the front lot. While the amount to be paid by the owner was not at all increased by extending the assessment to the adjoining lots, yet there was no authority for doing so, as the lots lying back did not touch the street. On this objection being made to the assessment, the city, by its counsel, asked the court to have it so corrected as to limit the assessment to the front lot. The application was allowed in one case, but denied in the others. Section 33, article 9, chapter 24, in relation to cities and villages, provides: “The court before 'which any such proceeding may be pending, shall have authority, at any time before final judgment, to modify,.alter, change, annul or confirm any assessment returned as aforesaid, or cause any such assessment to be recast by the same commissioners, whenever it shall be necessary for the attainment of justice,” etc. We think, under this provision of the statute, all of the amendments should have been allowed.

The order of the county court, as respects appellees’ lots, and from which this, appeal is prosecuted, is reversed, and the cause is remanded, with directions to allow the amendments in question, and for further proceedings in conformity with the views here expressed.

Order reversed.


author: Mr. Justice Sheldon

text:
    Mary Carter v. John Tice et al.

      Filed at Springfield March 23, 1887.

    1. GUARDIAN and WARD—release of guardian by ward—undue influence- A release of a guardian, and his sureties by the ward, after her majority, she being a daughter of the former, and living with him, and ignorant of her rights, without any payment or consideration, amounting to a virtual gift to the father and guardian, will, from the confidential relation between the parties,be presumed to have been obtained by undue influence, and the obtaining of it a constructive fraud on the ward; and where the guardian’s sureties are parties to the transaction, such release will be invalid as to them, as well as the guardian.
    2. Limitation—as against a ward while under guardian’s influence. In respect to the enforcing of the rights of a ward against the guardian and his sureties, there is much authority that time will not run against the ward while living with the guardian, and is under his influence and control, even after the majority of the ward. And when the further relation of parent and child exists between the guardian and ward, and the latter living with him, and being under his dominion, that will make the rule especially applicable.
    3. Same—application in equity. The bar of the Statute of Limitations will not be applied, in equity, so long as an action at law will lie upon the instrument upon which the proceeding in equity is predicated.

      4. Where a bill was filed by a ward within ten years after arriving at majority, against her guardian and his sui'eties on his bond, for an account, and the payment of the moneys due the ward, and to set aside a release given without consideration and in ignorance of the ward’s rights, the sureties having full notice that such release was fraudulently obtained, it was held, that there was no such laches on her part as to bar the relief sought, as the sureties in such case had no right to rely on the release.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Menard county; the Hon. Cyrus Epler, Judge, presiding.
    Mr. N. W. Branson, for the appellant:
    Where a gift, bounty, release or other gratuity proceeds from ward to guardian, during the existence or shortly after the determination of the relation of guardian and ward, it is an invariable presumption of law that the gift was procured by fraud or undue influence; and such presumption arises from the mere relation of the parties, without further proof. Wright v. Arnold, 14 B. Mon. 638; Ferguson v. Lowry, 54 Ala. 510; Womack v. Austin, 1 S. C. 421; Butler v. Haskell, 4 Des. 704; Morse v. Royal, 12 Ves. 371; Sears v. Shafer, 1 Barb. 417; Meek v. Perry, 36 Miss. 190; Harvey v. Mount, 8 Beav. 452; Griffiths v. Robbins, 3 Mad. 105; Richardson v. Linney, 7 B. Mon. 571.
    And a release or bounty so given will be set aside by a court of equity, upon the .ground of public policy, without proof of actual fraud. Meek v. Perry, 36 Miss. 250; Welles v. Middleton, 1 Cox’s Cases, 112; Ormond v. Hutchinson, 13 Ves. Jr. 47; Harris v. Carstarphen, 69 N. C. 416; Waller v. Armistead, 2 Leigh, (Va.) 11; Hatch v. Hatch, 9 Ves. 292; Garvin v. Williams, 50 Mo. 201; Say v. Barnes, 4 S. & R. 112.
    Such presumption of fraud or undue influence having once arisen, the court will view the whole transaction with an almost invincible jealousy, and will require of the defendants clear and distinct evidence which shall completely overthrow and repel the presumption which the law so raises. Hatch v. Hatch, 9 Ves. 297; Dawson v. Massey, 1 Ball & B. 232; Cadwallader v. West, 48 Mo. 502; Aylward v. Kearing, 2 Ball & B. 478.
    It must be shown, not merely that the person likely to be influenced fully understood the act he was performing, but also that his consent to perform that act was not obtained by reason of the influence possessed by the person receiving the benefit. Hoghton v. Hoghton, 15 Beav. 299.
    Such evidence must be furnished by the beneficiary, the ■ordinary rules of evidence as to the burden of proof being reversed by the rule of equity which presumes fraud from the existence of confidential relations between the parties, and benefit to the party having influence over the other. Wade v. Pulsifer, 54 Vt. 45; Garvin v. Williams, 50 Mo. 201; Meek v. Perry, 36 Miss. 190; Huguenin v. Baseley, 14 Ves. 300.
    The gift will not be sustained unless the ward had the benefit of competent, independent and disinterested advice. Harris v. Carstarphen, 69 N. C. 416; Malone v. Kelley, 54 Ala. 532; Wade v. Pulsifer, 54 Vt; 45; Coke v. Lamotte, 15 Beav. 243.
    The fact, that at the time of the gift the ward was a member of the guardian’s family, and in daily intercourse with him, greatly strengthens the presumption of fraud and undue influence. Harvey v. Mount, 8 Beav. 447; Archer v. Hudson, 7 id. 558; Aylward v. Kearney, 2 Ball & B. 478; Hatch v. Hatch, 9 Ves. 297.
    The obligation of complete disclosure on the part' of the guardian, always arises from the relation of guardian and ward. 2 Pomeroy’s Eq. Jur. see. 902, and cases cited; Hall v. Cone, 5 Day, (Conn.) 543; Hunter v. Atkins, 3 M. & K. 135; Darlington's Appeal, 86 Pa. St. 512; Dolby v. Monham, 33 Beav. 154; Kay v. Smith, 21 id. 522; Fish v. Miller, 1 Hoffm. Ch. 270; Womack v. Austin, 1 S. C. 421; Gregory v. Orr, 61 Miss. 307.

      Unless it be shown that the ward acted voluntarily, understandingly, and with the fullest deliberation, the gift will not be sustained. Wade v. Pulsifer, 54 Vt. 45; Gregory v. Orr, 61 Miss. 307; Womack v. Austin, 1 S. C. 421; Sullivan v. Blackwell, 28 Miss. 737; Richardson v. Linney, 7 B. Mon. 571; Wright v. Arnold, 14 id. 638; Spalding v. Brent, 3 Md. Ch. 411; Williams v. Powell, 1 Ired. Eq. 460.
    The bar of the statute will not be applied, in equity, so long as an action at law will lie upon the instrument. Wood on Limitations, 117; Gibbons v. Hoag, 95 Ill. 45; Greenman v. Greenman, 107 id. 411; Castner v. Walrod, 83 id. 171; Harris v. Mills, 28 id. 44; Rucker v. Dooley, 49 id. 377; Hancock v. Harper, 86 id. 445; Quayle v. Guild, 91 id. 378; Furlong v. Riley, 103 id. 628.
    If the injured party is under the influence or control of a former guardian or trustee, time will not run against him. Hayden v. Stone, 1 Duv. 395; 2 Perry on Trusts, sec. 805.
    Mr. T. W. McNeely, for the appellees:
    There is a difference between influence and undue influence. It is necessary to prove the latter, to set aside contracts between parents and children. 1 Perry on Trusts, sees. 200, 201; Bump’s Kerr on Fraud, 177; Jenkins v. Pye, 12 Pet. 253.
    Wynne, and especially appellees, perpetrated no fraud on appellant.
    The act of appellant releasing the sureties was not a gift. It was a contract with her father,—a settlement. Kirby v. Taylor, 6 Johns. 242.
    The delay in taking steps to avoid the release, prevented the sureties from seeking indemnity. Wardlow v. Gray, 2 Hill, 644.
    When a person, by his words or acts, causes another to believe in the existence of a state of things, and induces him to act on that belief so as to change his position, he will be estopped to aver against the latter a different state of things. 2 Smith’s Leading Cases, 542; Dazell v. Odell, 8 Hill, 219.

      When a party' is lulled into security by delay, or into omitting to do that which would have saved him from loss had the right of another been promptly asserted, the defence of laches is good. Gibbons v. Hoag, 95 Ill. 45.
    Appellant says, however, that she is not barred until the Statute of Limitations would have barred a suit on the guardian’s bond. On the contrary, it has been held that when a matter is purely equitable, the court will refuse relief if the plaintiff has been guilty of laches in asserting his rights, and a demand will often be regarded as stale, even though the time which has elapsed- is less than the statutory period in analogous cases. Spaulding v. Farwell, 70 Me. 17; Sullivan v. Railroad Co. 94 U. S. 806.
   Mr. Justice Sheldon

delivered the opinion of the Court:

On May 21, 1870, Clinton Wynne was appointed guardian of his daughter, Mary Wynne, (now Carter,) the- appellant, by the county court of Menard county, in this State,—the appellees, John Tice, Milton B. Harrison and Daniel F. Fouche, being sureties on his guardian’s bond; and on the same day, Wynne, as such guardian, received the sum of $1568, belonging to his said ward. Appellant, at this time, was between eleven and twelve years of age. In March, 1871, Wynne removed, with his family, to Wilson county, Kansas, where he has ever since resided, and there appellant resided with him, as a member of his family, from March, 1871, until October, 1881. Appellant became eighteen years of age on September 17,1876. Early in 1877, the appellees sent Mr. Tice, of their number, at their joint expense, to Wynne’s home in Kansas, to take some action in regard to the guardianship. Tice took with him a blank guardian’s report, and also a form of a receipt, to be signed by the ward. He arrived at Wynne’s home on the evening of February 1,1877. The next morning, the two together, (Tice and Wynne,) prepared what purports to be a report of Wynne, as appellant’s guardian, and Tice prepared a release from the form he had brought with him. This was in the absence of appellant, and before she had received any information as to the purpose of Tice’s visit. While the report and release were being prepared, appellant had gone to the barn to get a horse to ride to school, and as Wynne testifies: “I went to' her, and told her my securities as her guardian wanted it settled up, and if she would sign the receipt to release them, I would give her a mortgage on everything I had. She said she would do anything to relieve me; that she did not want me to ever name it to her again, for she wished she had never had an inheritance. She then went into the house with me. Mr. Tice then showed her the report above referred to, and the receipt. He told her to read them. Whether she did or not, I can not say. She signed the receipt. She then got on her horse and went off to school. That is all that was said or done by me, or her, or Tice, in regard to such settlement. ”. He stated, afterward, that she read the receipt. The receipt was as follows :

“Fredonia, Wílson County, Kan., February 2,1877.
“Received of Clinton Wynne, guardian of Mary Wynne, as appears from the records of the county court of Menard county, Illinois, $1464.96, which is in full of the amount due me from said guardian, as per final report and settlement of said guardian with the court aforesaid; and I hereby release and hold harmless the said guardian and his securities from all liabilities whatever of said guardianship.
“Given under my hand and seal the day and date above written. Mary Wynne. [Seal.]
Attest: Fannie Wynne.”

In preparing the guardian’s report, Tice and Wynne charged the latter with the sum of $1568, received by him May 21, 1870, and six per cent interest thereon, aggregating $2264.96. Then they credited him with the sum of $800 for appellant’s maintenance, and then, ascertaining the difference between said two sums, they credited Wynne with such difference, ■to-wit, $1464.96, in this form:

"Feb. 2,1877—By cash paid Mary Wynne, in full of balance found due her as per this settlement, as per voucher No. 1.....$1464.96.”

As to the $800 charge for maintenance, Wynne testifies: "“Part of the time I kept an account of money paid out by me .for board, and part of the time I did not. I approximated the $800 charged in my account, from the account I kept.” And he says he told Mr. Tice he thought Molly (appellant) would release the sureties, and she and he could arrange the matter between themselves. Tice left that day, bringing the report and the receipt home with him, had the same filed in ihe county court, and an order of court was made approving the report and discharging the guardian. This was done in the absence of appellant, and without notice to her, and no one represented her interests.

On May 7, 1885, appellant filed her bill in chancery in the ■circuit court of Menard county, against her guardian and the sureties on his bond as guardian, to set aside said release and discharge, and to enforce the defendants’ liability on such bond for the amount due from such guardian to his ward, the appellant. There was a decree in the circuit court against the guardian and his sureties, for the sum of $2199, from which the sureties appealed to the Appellate Court for the Third District, where the decree was affirmed as to the guardian, but reversed as to the sureties, from which judgment of the Appellate Court, the complainant, Mary Carter, prosecutes this appeal.

With respect to the occurrence of the alleged settlement, the testimony of appellant was, that in the morning, after she had started to school, her father came to her in the barn where she had gone for the horse, and said: “I don’t want you to go away yet, for I have a paper in the house I want you to sign.” “I said, ‘Well,’ and he said if I would, he would give me a mortgage on everything he had. We went to tEe house, and Mr. Tice handed me the paper, and told me to read it over before I signed it. I read it over and signed it. I had no other conversation with either of them about the paper before signing it. They had no conversation about that business in my presence.” 'She said her father had never given her a mortgage; that he never afterward said anything to her about the paper; that she signed the paper because her father told her to; that she did not know the effect of the paper at the time she signed if; that she thought it was something that wholly concerned her father, and that her interest was in-no way involved; that she did not then know her father was her guardian, nor that he had received any money belonging to her; that in October, 1881, she left her father’s home, and removed to Menard county, in this State, and that she then and there, for the first time, became fully aware of the nature and character of this paper she had signed on February 2, 1877;. that before that time, her father had never given her any information as to her money or property in his hands, or as to her pecuniary interests, and had never informed her he was her guardian, and that, for the first time, she became aware of the filing of the guardian’s report, and of its nature, in 1883 or 1884, after her marriage, in October, 1883, and that she did not learn that, as a matter of law, the paper she signed had not released the sureties, until 1884.

There is nothing in the record in any wa} contradictory of appellant’s statement" of having been kept in ignorance as to the guardianship and her property, more than may be found in the following testimony of her father: “From the time I was appointed guardian, in 1870, until February, 1877, my daughter, the appellant, lived with me as one of the members of my family, and we were all this time on the most intimate terms, and not a word was ever said to her, or in her presence, of the fact that, in 1870, I had been appointed her guardian, and had received about $1500 for her, and that I had continued her guardian during all that time, except that in 1870 I told her I was her guardian. That is all the talk we ever had about the matter, that I remember. ” He.stated subsequently, on a reexamination: “As near as I remember, in 1870 appellant said to me that her aunt had told her I was appointed her guardian, and she must have me keep her money out at interest. She asked me if that was the fact, and I told her it was.” Appellant’s property in question came to her from the estate of her deceased mother, who died some time previous to 1867, her father in that year contracting a second marriage.

The transaction in question, by which this ward," after the termination of the guardianship, was induced, at the solicitation of her guardian, to gratuitously release to him all her property, of quite an amount, in his hands, can not stand for one moment, on the best settled legal principles which have been established for the protection of infants. The release was a virtual gift by the ward, to the guardian and his sureties, of her entire estate, and, from the confidential relation between the parties, is presumed to have been executed under undue influence, and the obtaining of it ivas at least a constructive fraud. The principle which applies in such a case is-thus stated in 1 Story’s Eq. Jur. see. 317: “It is obvious, that during the existence of the guardianship the transactions of the guardian can not be binding upon the ward, if they are of any disadvantage to him; and, indeed, the relative situation of the parties imposes a general inability to deal with each other. But courts of equity proceed yet further in cases of this sort. They will not permit transactions between guardians and wards to stand, even when they have occurred after the minority has ceased, and the relation become thereby actually ended, if the intermediate period be short, unless the circumstances demonstrate, in the highest sense of the terms, the fullest deliberation on the part of the ward, and the most abundant good faith (uberrima fieles) on the part of the guardian. For, in all such cases, the relation is still considered as having an undue influence upon the mind of the ward, and as virtually subsisting, especially if all the duties attached to the situation have not ceased,—as, if the accounts between the parties have not been fully settled, or if the estate still remains, in some sort, under the control of the guardian. ” To the same effect is 2 Pomeroy’s Eq. bur. sec. 961.

The doctrine is abundantly sustained by the authorities cited by the authors; and see, particularly, the many authorities referred to in the notes to the last named citation; and see Hall v. Cone, 5 Day, 548; Garvin v. Williams, 44 Mo. 465; 50 id. 206; Wade v. Pulsifer, 54 Vt. 45. There was, here, the further relation of parent and child, which adds strength to the case of the complainant, the child then yet living with the parent, and being under his dominion. See 2 Pomeroy’s Eq. Jur. sec. 962.

The bare statement of the facts of this case, with the principle applying to them, plainly establishes the invalidity of the release in question. Any further enlargement, in the way of comment, upon the facts, or of argument, would be mere superfluity. The sureties of the guardian, through one of their number, having actively participated in obtaining the release, it is invalid as to them, alike as to the guardian.

The only question which there is in the case, in our view, is, whether the complainant should not be held to be barred of her remedy by reason of the delay in bringing her suit. The transaction of giving the release occurred February 2, 1877. The suit was commenced May 7; 1885. Appellant remained a member of her father’s family, living with him at his home and under his dominion, until October, 1881, when-she ceased to live with her father, and then, as she testifies, for the first time she became aware of the nature of the paper which she signed February 2,1877, and that she did not learn of its invalidity, and that it was not binding upon her, until in 1884.

There is much of authority to the point, that time would not run against appellant during the time she was living with her father and guardian, and under his influence and control. (2 Perry on Trusts, secs. 864, 865; Kerr on Fraud and Mistake, 311.) The suit is for the purpose of enforcing the liability of the defendants under the guardian’s bond. Under the Statute of Limitations, appellant had ten years after her right of action accrued, within which to sue upon the bond, and this suit was brought within that time. There was no occasion for any movement to have the release set aside until proceeding was taken to enforce the liability upon the bond, when there might be set up the release, in bar of the remedy sought. Because appellant had not earlier taken steps to have this release set aside, which the defendants themselves had fraudulently interposed as a technical obstacle to an action at law upon the bond, would not seem to be any just cause of complaint on their part. The statutory bar will not be applied, in equity, so long as an action at law will lie upon the instrument upon which the equitable action is predicated. Wood on Limitations, 117.

But it is said, as to the sureties, that they relied upon the release as a discharge of their obligation, and may have been led thereby not to obtain indemnity against their liability, which otherwise they might have procured. Any blame in this respect rests upon the sureties themselves, and is not properly chargeable against appellant. She herself did nothing more than to sign her name to the paper of February 2,1877, purporting to be a receipt of $1464.96, and a release, which these sureties, by one of their number, prepared for her to sign. They, through Tice, knew it to be a false document, and also knew, or ought to have known, that it was a fraudulent one. They knew there was no money received. So, also, when Tice, the surety, wrote down in the guardian’s report, prepared at the same time, a credit of date February 2,1877, “By cash paid Mary Wynne, in full of balance found due her as per this settlement, $1464.96, ” he knew that to be false,— that there was, at that time, no money whatever paid to her. There was, confessedly, at that date of February 2, 1877, $1464.96 of the ward’s moneys in the hands of her guardian. It was his duty to then pay it over to his ward. . The sureties had entered into an obligation on their part that he should pay the money to her. Instead of this being done, the guardian and one of the sureties sit down, and between themselves make out and prepare this guardian’s report and paper of February 2, 1877, and this young girl, who had started for school, is called back, and not as her own' spontaneous act, but at the solicitation of her guardian and father, with whom she was living in her dependent situation, without any disclosure of facts to her, with no disinterested adviser present, without any deliberation, reads the paper, hurriedly, and not understandingly, as may be presumed, signs her name to it, and starts away to school,—and this paper, thus obtained, it is said, the sureties relied on as a discharge of their obligation that this money should be paid over to the ward. It was no discharge. There was nothing paid or received, and nothing discharged.

■ The sureties had no right to rely upon this paper purporting to be a release, as a discharge of their liability upon the bond; and they should not have been misled by any want of action to have the release set aside, there being no occasion, as before observed, for any such action, until appellant came to enforce the liability upon the bond, and this fraudulently obtained release would be set up in defence.

We do not think there has been, here, any laches which should be held to bar the suit, either as against principal or sureties.

The judgment of the Appellate Court will be reversed, and the decree of the circuit court is affirmed.

Judgment reversed.