text:
    In the matter of the estate of Joel Corrington, deceased.

      Filed at Springfield March 28, 1888.

    1. County court—equitable jwisdiction—in the settlement of estates. The county court, as a court of probate, in the settlement of estates and the adjustment of the accounts of executors, administrators and guardians, exercises equitable jurisdiction, so far as may be necessary to adjust the same.
    2. So if an executor, either through bad faith or by failure to exercise reasonable diligence, diminishes the funds in his hands for distribution under the will, he should be required to account for it, and the county court is clothed with ample jurisdiction and power to compel a just and true accounting, and to require him to charge himself with the deficit.
    3. Administration of estates—liability of executor or administrator for a devastavit or waste. Acts of negligence in the control or disposition of an estate by the executor or administrator, careless administration of it, or a willful disposition of the assets of the estate, -whereby the rights of creditors or legatees or parties entitled in the distribution are injured, amounts to a devastavit or waste, for which the executor must account.

      4. Same—sale of land at less than its value—liability of the executor— land to be sold and proceeds divided—a bequest of money, not a devise of land. Where a testator, by his will, directs the sale of his land by the executor, and the division of the proceeds equally among the testator’s children, this will be a devise of money and not a devise of land; and the executor may be held responsible for the value of the land, when he corruptly, or through gross negligence, sells the same for less than its value-,, and the county court may charge him, on final settlement, with such a sum as he might have realized by reasonable care and diligence.
    5. Same—when executor liable for costs of his accoimting. Where an executor makes out an improper and incorrect account of his administration, or is guilty of such misconduct as to render litigation necessary for the protection of the rights of the distributees, there will be no error in requiring him personally to pay the costs of the proceeding.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Ketcham & Hatfield, for the appellant:
    The executor derives his authority from the will, and not the court, and the county court has no further authority than to see that the will is executed. It can not control his discretion. If he acts in good faith he can not be held liable-for a loss. Whitney v. Peddicord, 63 Ill. 251.
    For any abuse of the trust, or sale made in bad faith, the-remedy is in a court of equity.
    All the costs under the reversed decree should have been taxed against the objectors or directed to be paid in due course of administration.
    Messrs. Patton & Hamilton, for the appellees:
    If the executor sold the land for less than its value when more might have been had for it, this was waste or devastavit. Lomax on Executors, chap. 4, sec. 3; Wadsworth v. Connell, 104 Ill. 369; Corrington v. Corrington, 15 Bradw. 393.
    The probate court, it has been repeatedly held by the Supreme Court, may exercise equitable jurisdiction in the settlement of estates,—not full jurisdiction, but such as is adapted tp its organization and mode of proceedings. Wadsworth v. Connell, 104 Ill. 369; Moore v. Rogers, 19 id. 347; Hurd v. Slaten, 43 id. 348; Dixon v. Buell, 21 id. 203; Water Power Co. v. Webster, 26 id. 233.
    The land devised by Joel Corrington to his children is to be treated as a devise of money, and not of land. The rule is, that a devise of real estate, which, by the provisions of the will, is to be converted into money, and that money distributed among the devisees, must be treated as a devise of money, .and not of land. Baker v. Copenbarger, 15 Ill. 103.
    The law does not require any one to accept the office of -executor, but if one does accept it he must discharge its duties with as much fidelity and care as prudent men ordinarily bestow upon their own affairs. But where the executor has acted with reasonable diligence, and an honest desire to do his duty faithfully, mere errors of judgment or opinion will not render him liable. The executor, however, must be held to that degree of diligence which men ordinarily use in their own affairs, and if, through lack of that, the interests of the trust estate are damnified, the executor makes up the loss. Whitney v. Peddicord, 63 Ill. 251.
    Section 21, chapter 33, of the Revised Statutes, provides, that “in all cases of appeal from the decision of a county court in matters of probate and administration of estates, * * * the costs shall be in the discretion of the Appellate Court.”
    Where the costs are in the discretion of the court, an appellate court will not interfere. Lee v. Quirk, 20 Ill. 392; Smith v. Kinkaid, 1 Bradw. 620.
    As a general rule, an executor or administrator should not be made personally liable for Costs, but should he act mala fide, ■or be guilty of gross negligence, he should be held personally .responsible for costs. Burnap, Admr. v. Dennis, 3 Scam. 478.
   Mr. Justice Shope

delivered the opinion of the Court:

The executor of the last will of Joel Corrington, deceased, on May 23, 1883, presented to the county court of Morgan county his report as executor, in which, among other items, he charged himself with $2389.20 received from J. B. Corrington for 79^0- acres of land, and $5860.80 received from William Corrington for 195T3^- acres of land, sold by said executor to said parties, respectively. To this report exceptions were filed, none of which are before us by this appeal, except the fourth, which was an exception to the said items for the sale of said land, because the sales, as reported, were for a sum greatly less than the actual cash value of said lands, and less than the executor might reasonably have realized therefrom. The county court sustained this and other exceptions, and upon appeal to the circuit court said fourth exception was again sustained, and the executor ordered by the court to charge himself with the additional sum of $2750, being the amount found by that court to have been charged less than the executor should have realized from the sale of said land. Upon the last appeal the-finding and order of the circuit court were affirmed by the Appellate Court, and the executor prosecutes this further appeal.

The jurisdiction of the county court to require the executor to account in respect of this item is questioned. The contention is, that where an executor is empowered by the terms of the will to sell real estate, the court may require him to-execute the will in that respect; but when a sale is made and reported, the authority of the probate court is at an end, and resort must be had to a court of chancery, by the party injured, to correct an abuse of the trust, or for relief.

The courts of probate, in the settlement of estates and the-adjustment of the accounts of executors, administrators and guardians, exercise equitable jurisdiction, so far as may be necessary to adjust the same. Dixon v. Buell, 21 Ill. 203; Hurd v. Slaten, 43 id. 348; Wadsworth v. Connell, 104 id. 369 Millard v. Harris, Exr. 119 id. 185.

The land mentioned as sold, in the report of the executor, was, by the will of Joel Corrington, deceased, duly admitted to probate, devised to be sold by said executor, and the proceeds thereof divided equally among the testator’s six children, named in the will. The intent of the testator to devise the money arising from the sale of said land, is clearly expressed. There was here, then, a devise of money, and not of land. It was said in Fletcher v. Ashburner, 1 Bro. C. C. 497, “that nothing is better established than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted.” (Williams on Executors, 414, et seq., Wheldale v. Parkridge, 5 Ves. 396; 2 Story’s Eq. 212-214.) Where, as in this case, a will requires real estate to be converted into money, and there is no election by the devisee to take the real estate directed to be converted, it is to be considered as converted from the time of the testator’s death. Wurt’s Exrs. v. Page, 4 C. E. Green, 365; Dodge v. Pond, 23 N. Y. 69.

The principle that a testator may thus impress upon real estate the character of personalty, and that whoever takes the property under the will takes it in the character thus impressed upon it, has been repeatedly held by this court. (Baker v. Coppenbarger, 15 Ill. 103; Jennings v. Smith, 29 id. 116; Rankin v. Rankin, 36 id. 293.) In equity, at least, this devise was of a fund distributable by the executor to the devisees named in the will, and, • as such, was in his hands by virtue of his office, and which he must account for under the direction of the probate court. By the will the executor was clothed with discretion as to the time and manner of making" sale of these lands, but he must exercise such discretion with fidelity to the interests of the beneficiaries, and in a reasonable and prudent manner. Having accepted the trust, he was bound to execute it with integrity, and while he can not be held liable for mistake in matters of judgment or opinion, where ordinarily prudent business men might be alike mistaken as to what was for the best interests of the estate, it was his manifest duty to make a fair and honest sale, for the best price reasonably obtainable. He was required to act in good faith, and with that degree of reasonable diligence ordinarily employed in like business affairs by men of common prudence, and if, from his failure to do so, injury and loss occurred to the distributees under the will, he must make good the loss so occasioned. Acts of negligence in respect of the control or disposition of the estate, careless administration of it, or a willful disposition of the assets of the estate, whereby the rights of creditors or legatees, or parties entitled in distribution, are defeated, amount to a devastavit. While no person is required by law to accept the trust of the execution of a will, yet if one does accept, he must perform it, using due and reasonable care and diligence to prevent loss to the estate. (Whitney et al. v. Peddicord, 63 Ill. 249; Williams on Executors, 1804-1816; Lomax on Executors, chap. 4, sec. 3.) If, then, the executor, either through bad faith or by failure to exercise reasonable diligence, diminished the funds in his hands for distribution under the will, he should be required to account for it, and the probate court is clothed with ample jurisdiction and power to compel a just and true accounting, and to require him to charge himself with the deficit.

It is also contended that the evidence does not warrant the finding. The fund coming to the hands of the executor was, in respect to the matter being considered, to be measured by the amount for which the lands might have been sold by the exercise of reasonable diligence and prudence by the executor. He is shown to have refused an offer of $33 per acre for the land, vihich he shortly after sold to his sons for $30 an acre. The excuse given for not accepting the offer made was, that it was in part on time, and he preferred to sell for cash. If this was so, it is apparent that he sold to his sons wholly on time, and when cited by the court to account, advanced the money from his own pocket to make the payment for the land at $30 per acre. It appears that on various occasions, prior to the sale to his sons, he was applied to by persons, some of whom wished to purchase, for the price at which the land could be purchased. To some of these persons he stated the lowest price at $45, to others, $50 an acre, and refused to take $40 an acre when applied to by the witness Harrison Robinson, in the fall of 1881 or spring of 1882. It appears from the testimony of a number of witnesses, whose means of knowledge seems ample, that the lands were worth not less than $40 an acre, and could have been sold for that price, while some of the witnesses put its value as high as $45 and $50. The executor, however, at private sale, without advertising the land, or otherwise, so far as appears, attempting to attract purchasers, sold the two tracts mentioned, in the spring of 1882, to his sons, at $30 an acre. It is true, the evidence is conflicting as to the value of the land; but as already said, the probate, circuit and Appellate courts have found that the preponderance of the evidence supports the contention that $40 per acre could have been realized by the executor with the exercise of reasonable diligence and a proper regard for his duty in the execution of the trust imposed on him by the will, and we are unable to say there is error in this respect.

There are other minor objections urged, one of which, only, will be noticed. The court below taxed the costs of this investigation against the executor, personally, and this is assigned as error. The costs were in the discretion of the court, and we are not prepared to say the discretion was abused. If the willful misconduct of the executor, or his gross negligence in conducting his trust, rendered litigation necessary for the preservation of the rights of the distributees, it is manifestly just that he should bear the expense, rather than it should fall upon them.

We find no error in this record authorizing a reversal, and the judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    James M. Helm v. Helen G. Boyd.

      Filed at Mt. Vernon March 27, 1888.

    1. Mobtgage—of a deed absolute in form—whether a mortgage. By the statute, every deed conveying real estate, intended only as a security in the nature of a mortgage, though absolute on its face, is to be considered as a mortgage.
    2. Same—of evidence to show a deed absolute in form to be a mortgage only. A deed absolute in form may be shown by parol to be a mortgage, but in the absence of evidence to the contrary the law will presume such a. deed is what it purports to be,—an absolute conveyance. To show the deed is a mortgage, the evidence must be clear, satisfactory and convincing. The question is one of intention, to be ascertained from all the circumstances.
    3. In this case a father induced his daughter to convey to him her interest in land on an expressed consideration much less than its real value, advancing, at the time, the sum named as the consideration, to her husband by way of loan, and no time was mentioned for • repayment. The father, however, led the grantor to believe that there would be enough coming to her from his estate to cancel the indebtedness, and assured her that she would get the land back without being troubled as to paying back the loan: Meld, that the deed was to he treated as a mortgage, to secure the money advanced to the grantor’s husband.
    4. Evidencie—declarations m one’s own favor. On a bill by the grantor in a deed to have the conveyance declared a mortgage, and to redeem from the same, the declarations of the grantee, in his lifetime, in the absence of the grantor, to the effect that he had purchased the property, are incompetent evidence against the grantor.
    Appeal from the Circuit Court of Wabash county; the Hon. C. C. Boggs, Judge, presiding.
    This is a hill in chancery filed in the circuit court of Wabash county by the appellee against the appellant, who is her brother.
    Appellee, whose maiden name was Helen G: Helm, inherited from her mother, who died in July or August, 1874, one-seventh of a tract of 742^^- acres *in Wabash county, and one-seventh of a part of block 18 in the town of Grrayville in "White county. By a quitclaim deed, dated and acknowledged January 10, 1882, and recorded on June 9, 1884, in White county and on January 21,1885, in Wabash county, appellee and her husband, James S. Boyd, conveyed the said oneseventli interest in said property to John J. Helm, appellee’s father, for an expressed consideration of $1000. By a quitclaim deed, dated and acknowledged January 17, 1885, and recorded January 21,1885, John J. Helm and his wife, Annie Y. Helm, (the latter being appellee’s step-mother,) conveyed said interest, for an expressed consideration of $1000, to the appellant, John J. Helm’s son, reserving to John J. Helm the use and benefit of said premises during his life.
    Appellee alleges, in her bill, that her one-seventh of said property was worth $3000 on January 10, 1882; that, on that day, her father loaned her $1000 without interest, and that she and her husband made the quitclaim to him to secure such loan; that the deed was not intended by her and her father to be an absolute one, but that it was expressly agreed between them, that he should hold the deed and the land as security for the loan, and should reconvey the land to> her upon repayment of the $1000; that, when her father deeded her interest to the defendant, her brother, the latter had due notice and full knowledge of her rights and of the terms, on which her father held the property; that it was expressly-agreed between her father and the defendant, that she should have the right to redeem upon paying defendant $1000 with legal interest; that defendant, since the death of John J. Helm, them father, in March, 1886, has collected $300 of rents; that, on December 2, 1886, she tendered to defendant $1000 with legal interest and offered to pay him what was-due to him, but he refused to accept the money or rec-onvey the premises. The bill prays for an account, and that, upon, the payment to defendant of the amount due him, he may be-required to reconvey and deliver possession of the premises to the complainant.

      The answer admits the original ownership by complainant and the execution of the quitclaim deeds, but denies that the deed to John J. Helm was made to secure a loan, and claims that it was made to carry out a sale of the property, and that John J. Helm paid complainant $1000 as purchase money. The answer also denies, that, when the defendant took the deed from his father, he had any notice of complainant’s alleged interest in the premises, and claims, that he bought the property in good faith and paid $1000 for it, and that $1000 was its full value, and furthermore denies, that defendant agreed to allow complainant to redeem, or that he collected $300 of rents. The answer claims the benefit of the Statute of Frauds.
    Beplication was filed to the answer, and the cause was heard upon bill, answer, replication and proofs taken and filed.
    The circuit court found the allegations of the bill to be true, and decreed that appellee should pay to appellant within sixty days $992.40 with six per cent interest from May 26, 1887, till paid, and that, thereupon, appellant should convey all his right,- title and interest in the premises to appellee, and, upon his failure to make such conveyance within twenty days after such payment, it was ordered that the master make the deed, etc.
    Messrs. Bell & Green, and Mr. Thomas G. Parker, for the appellant:
    The deed on its face shows an absolute sale and conveyance, and the onus was on appellee to show it was intended by both parties to be a mortgage. Bentley v. O’Bryan, 111 Ill. 53.
    To establish a deed, absolute on its face, to be a mortgage, the evidence must show clearly that it was intended, at the time of its execution, to be a mortgage. Sharp v. Smitherman, 85 Ill. 153.
    To establish a deed, absolute in form, to be a mortgage, the evidence must be strong and convincing. Hartnett v. Ball, 22 Ill. 43; Hancock v. Harper, 86 id. 445; Bartling v. Brasuhn, 102 id. 441.

      Where a deed for land on its face appears to be an absolute and unconditional conveyance, and is acknowledged and delivered, the law will presume, in the absence of proof clearly showing the contrary, that it is what it purports to be,—an absolute conveyance. Bentley v. O’Bryan, 111 Ill. 53.
    Where a conveyance of land is in form absolute, in order to change its character to that of a mortgage, the proof must show clearly that such was the contract and intent of the parties. Clark v. Finlon, 90 Ill. 245; Dwen v. Blake, 44 id. 136; Price v. Karnes, 59 id. 277; Remington v. Campbell, 60 id. 516; Magnusson v. Johnson, 73 id. 156.
    A deed, absolute on its face, will never be held to be a mortgage, unless the proof is clear and positive that it was so intended by the parties. Bailey v. Bailey, 115 Ill. 551.
    In the light of the facts, instead of the transaction being a loan and mortgage, it was an advancement and conveyance of the land in trust, the purposes of the trust resting wholly in parol, and are clearly within the Statute of Frauds, and can not be proven by parol evidence when the statute is pleaded., as in this case. Lawson v. Lawson, 117 Ill. 98.
    Mr. J. B. Williams, for the appellee:
    When we take into consideration the valué of the property, the intimate relationship of the parties, and the wonderful influence which a father of sixty-five years has over a daughter who is a mere child, and the implicit confidence the child has in such father, does not the evidence in this record clearly and conclusively show that equity would allow the daughter to re- ■ deem from such a conveyance ? The language of the parties, the acts and circumstances connected with the transaction, should not be construed by the same rule as though the parties were strangers.
    In equity, the form of the transaction is not regarded, but the substance must control. In cases of this sort, the real character of the arrangement may as often be gathered from the nature of the transaction and character of the circumstances as from the express declaration of the parties. Preschbaker v. Feaman, 32 Ill. 475; Sutphen v. Cushman, 35 id. 186; Miller v. Thomas, 14 id. 428.
    We admit the rule is, that clear and convincing evidence is required to show that an absolute deed was intended as a mortgage, but insist the proof in this case is of that character.
    A right or privilege to redeem from an absolute deed may exist without any legal obligation on the other side compelling the party to redeem. Wright v. Gay, 101 Ill. 233.
    The Statute of Frauds is not applicable in this case. Life Ins. Co. v. White, 106 Ill. 67; Worden v. Crist, 106 id. 326; Wright v. Gay, 101 id. 233; 2 Washburn on Real Prop. (3d ed.) 451.
   Mr. Justice Magruder

delivered the opinion of the Court:

The first question is whether the deed from appellee and her husband to her father, John J. Helm, was an absolute conveyance or a mere mortgage security. The statute says: “Every deed conveying real estate, which shall appear to have been intended only as a security in the nature of a mortgage, though it he an absolute conveyance in terms, shall be considered as a mortgage." (Starr & Curtis’ Ann. Stat, chap. 95, entitled “Mortgages,” sec. 12, p. 1636.)

A deed, absolute on its face, may be shown by parol to be a mortgage. The law will, however, presume, in the absence of proof to the contrary, that such a deed is what it purports to be—an absolute conveyance. The party, who claims an absolute deed to be a mortgage, must sustain his claim by proof sufficient to overcome this presumption of the law. Before a deed, absolute in form, will be held to be a mortgage, the evidence must be clear, satisfactory and convincing. It must be made to appear clearly, that such a conveyance was intended to be a mortgage at the time of its execution. The question is one of intention to be ascertained from all the circumstances. (Sharp v. Smitherman, 85 Ill. 153; Bartling v. Brasuhn, 102 id. 441; Bentley v. O'Bryan, 111 id. 53; Workman v. Greening, 115 id. 477.)

An examination of the testimony is necessary in order to see what the real intention of the parties was. It is not clear from the evidence whether appellee’s mother died before or after July 1, 1874. But it is admitted by counsel on both sides, that John J. Helm had a life interest as tenant by the curtesy in the one-seventh part of the premises in question, which appellee inherited from her deceased mother. When she deeded her one-seventh interest to her father on January 10, 1882, she was only twenty years old, and had then been married only about six months.

Appellee swears, that her father proposed to her to advance $1000 to her husband, James S. Boyd, to start him in business ; that her father said he did not want the land, and that the payment of the $1000 was merely an advancement made to help her and her husband, and that it would all come back to her; that he told her the land had been left to her by her mother and -should all come back to her and her children; that she never asked her father for money, when he proposed to advance money on the land; that she never offered to sell the land to him and he never offered to buy it; that, when she signed the deed, he said to her: “Ton and Jim are young yet and 1 merely do this to have a little jurisdiction over it; as for the deed being recorded there shall never be a scratch of the pen against your property; as far as the $1000 is concerned I will make that right with the other children;” that, in July, 1885, when she learned that her father had recorded the deed from her and had made a deed of the land to her brother, the appellant, she asked him about it, and he replied: “I transferred to Jimmy Helm under the same conditions that I got it from you, and he is to let you have it back; I did it to keep Annie (the second wife) and her children from getting a foothold; * * * your brother will do what is right; ” that, when she made the deed to her father, she did not know how much land she owned or was conveying or anything about its value; that, an hour after she made the deed, her father-paid $500 and the balance in small amounts from time to time; that there was no agreement between her and her father about re-paying him the $1000, etc.

James S. Boyd swears, that in'November and December, 1881, and again about January 1, 1882, John J. Helm proposed to advance money to him to go into business by buying an interest in a printing office, and said he would take a quitclaim deed on Helen’s portion of the property, and let them have $1000, part of which he would pay next morning; that “he requested me to explain the matter to my wife; he said for me to have no fears, for the amount would all come back to us children, and he would make it satisfactory with the other children;” that John J. Helm “said he took the deed to have a little jurisdiction over us and the amount he advanced us, as we were both young, and that the deed should never be recorded;” that he talked with his wife and told her to do what she thought best and she said she was satisfied her father would “stick to what he says;” that the next morning he told Mr. Helm his wife “was willing to get or borrow the money;” that neither he nor his wife knew the amount or value the deed called for; that he never offered to sell his wife’s land to her father nor asked him to furnish money to go into business with; that, when the deed was made, Mr. Helm said: “I merely advanced this much money on the place; * * * eventually this will all come back to her; I will see that it is made up to the other heirs;” that his wife’s father never-stated that he expected the $1000 to he paid hack to him and never asked for it.

Annie V. Helm, widow of John J. Helm and step-mother of appellee, swears that her husband told her, before Mrs. Boyd made the deed to him, that he wanted to get the deed to keep them from disposing of the land to Mr. Gray (the brother of Helm’s first wife); that, after her husband received the deed, he said he intended to give it back to appellee, and merely wanted to get it in such a way that she could not dispose of it; that he never had the deed recorded on that account; that appellant wrote to his father advising the latter to get a deed from Helen to prevent the land going into Gray’s hands, and that such letter was sent to Mrs. Malcom Eastwood, (appellant’s sister), to prevent it from falling into the wrong hands; that on the evening before she and her husband conveyed the premises to appellant, her husband said to her: “He (appellant) wants me to make that property over to him and I don’t want to do it;” that she (witness) did not want to sign the deed to James, and reminded her husband of his promise to give the land back to Helen, and he said that “Jimmie would make it all right with her.”

Jane Helton swears: “A short time before John J. Helm made the deed to James M. Helm for said lands I heard said John J. say Jimmie would hold the property for Ella the same as he had, and Mrs. Helm objected to doing it.”

George W. Cline, the attorney who drew the deed, made by appellee to her father, swears that, before the deed was executed, John J. Helm told him, that he wanted the deed so that he could control the property, and keep Boyd from disposing of it “if he got to drinking,” and that he was afraid Gray might get hold of it; that Helm also told him, that the property would go to Ella at his death and that “he did not want it to get mixed up with his other property.”

The testimony of Catharine A. Wintermute confirms the evidence of appellee and Annie Y. Helm in several particulars.

There is a considerable amount of testimony in the record as to the value of the land. After a careful examination of it, we are satisfied that appellee’s one-seventh interest in the property, notwithstanding the fact that it was an undivided interest and subject to her father’s life estate, was worth very much more than $1000, when she made the deed to her father and when the latter made his deed to appellant.

Appellant testified as follows: “About the first of 1885, said John J. Helm told me he had bought Mrs. Boyd’s share uf her mother’s estate; that he had advised her not to sell it, and told her that at his death the property would be worth more than she could then realize on it, on account of his life estate; that she insisted on his buying it, and said if he did not she would sell to some one else; that he bought the property to keep it from falling into other hands, and jt&id her $1000 for it, and that he had to borrow money to pay for it. He proposed that I buy it from him at the same price, to prevent Mrs. Helm No. 2 and her children getting a foothold in my estate.”

Mary W. Helm, a sister of appellant and appellee, testified on behalf of appellant as follows: “I heard a conversation between father and complainant, in which he advised her not to sell her interest in said lands. He told her it would be worth more at his death than she could get for it- then. She wanted $1200, and he told her he could not give more than $1000; that he did not think any one would give more than that when they could not get possession until he died. She said she would rather have the money then to buy a homestead. They were on the front porch, and I was in the hall. I think this was in July, 1881. I also heard Pa tell Mr. Boyd that he thought Ella was very foolish to sell her land.”

John J. Helm, Jr., and J. B. Eastwood testified as to declarations of John J. Helm to the effect that he purchased the property, but, as these declarations were made in his own favor and in the absence of appellee, they were clearly incompetent.

The circuit judge found that the deed from appellee to her father was a mere security, and we are unable to say that the evidence does not sustain his finding.

The relation, in which John J. Helm stood to his daughter, naturally gave him great influence over her. The price, which he is claimed by appellant to have paid her for her property, was greatly below its real value. Her statement that he promised not to record the deed is confirmed by the fact, that •such deed, although executed on January 10, 1882, was not, as matter of fact, recorded in White county until June 9,1884, nor in Wabash county until January 21, 1885.

It is true, that she did not agree to pay back the $1000 at a definite time. Her father would appear to have held out to her the idea, that she would get enough from his estate to pay back the $1000, or that there would be enough coming to her from his estate to cancel the indebtedness of $1000. Still, the impression made by the evidence is, that, if he did not actually practice a fraud upon her, he induced her to deed to him her property under the belief that in some way it was to come back to her, and that she was not to be troubled about re-paying the amount advanced to her. We said in Workman v. Greening, supra: “If it shall appear, no matter what the form of the transaction, that the conveyance is, in fact, hut an indemnity or security, it will be held a mortgage, and the character of liability against which indemnity is intended, or the kind or dignity of indebtedness intended to be secured, is unimportant.”

The next question is, whether appellant had notice of appellee’s rights when he received the deed from his father of his sister’s one-seventh interest. There is testimony, that he had actual notice of such rights. Mrs. Helm, who is a disinterested witness, swears, that, when she and her husband were having a conversation about her signing the deed to appellant, and while she was reminding him of his promise to give the land back to appellee, and was refusing to sign the deed he wanted her to sign, the appellant was in the adjoining room or hall and called out to his father, “make her sign it,” showing that he heard the conversation.

The decree directs, that there shall be returned to appellant, the $1000, which he paid to his father, with interest thereon, subject only to the deduction of rents received by him from the property. We think the decision of the court below does justice between the parties.

The decree of the circuit court is affirmed.

Decree affirmed.


author: Mr. Justice Scott

text:
    Harry Gilmore v. The People of the State of Illinois.

      Filed at Ottawa March 26, 1888.

    1. Criminal law—threats—as justifying the taking of life. Threats of personal injuries, or even against the life of another, will not justify the latter in taking the life of the person who has made such threats, when he is doing nothing to put them into execution.
    2. Instructions—the whole series to he considered. This court may well omit to consider a great number of instructions in detail, when it can see, from the whole series read together, as they should be, that the jury have been fully and fairly advised as to the law applicable to the facts they are called to consider.
    3. Same—numerous instructions—not approved. The practice of asking a great many instructions upon every conceivable phase of the law is a pernicious one, as, if given, they will tend rather to confuse than to enlighten the jury.
    I. Hew trial—newly discovered evidence. A new trial will not be granted for the purpose of permitting the introduction of newly discovered evidence, which is merely cumulative.
    Writ of Error to the Criminal Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Munn & Wheeler, for the plaintiff in error.
    Mr. George Hunt, Attorney General, and Mr. Julius S, Grinnell, State’s Attorney, for the People.
   Mr. Justice Scott

delivered the opinion of the Court:

At the April term, 1881, of the Criminal Court of Cook ■county, Harry Gilmore was indicted for the murder of George McBride. It seems he was not tried for the offence until the ■January term, 1887, of that court. On the trial he was found .guilty of murder, in manner and form as charged in the indictment, and the punishment he should suffer fixed at thirty years in the penitentiary. The motion entered for a new trial, supported in part hy affidavits alleging the discovery of new and important testimony, was overruled hy the court, and judgment pronounced on the verdict.

Although numerous errors are assigned upon the record, ■only a brief discussion of the principal ones will be necessary. It is not denied that defendant fired the fatal shot that caused the death of the party alleged to have been murdered. It can not be claimed, with any show of reason, the killing was done in self-defence, or for any other cause that would wholly excuse the act of defendant. The fact the deceased may have made threats of personal violence against the accused, does not afford the slightest justification for the killing, under the •circumstances under which it was done. The idea that threats of personal injuries, or even against the life of another, will .justify taking the life of the party making them, when he is ■doing nothing to put such threats into execution or to do other wrong, is not to be tolerated. Human life is entitled to better security, and the law gives no sanction to any such doctrine. 'The only possible question that can arise on the merits of this ■case is, whether the circumstances in evidence would reduce the offence below the grade of murder, of which crime defendant was found guilty. As is usual in such trials, this record •contains much contradictory testimony. Even among the witnesses that were present and witnessed the affray, there is much contrariety of statements. There was testimony given, if the jury believed it to be worthy of credit, that would warrant the verdict of guilty of murder. Even if the jury considered no testimony other than that of defendant himself, this court would hesitate before it would declare the verdict was not sustained by the evidence. Ordinarily, it is the .province-of the jury, in all criminal cases, to weigh the evidence, to give-credit to such testimony as they may deem worthy of belief, and their verdict is usually accepted as the correct conclusion to be drawn therefrom. On a careful consideration of the evidence in this ease, no reason is perceived for departing from this general rule, and no reason appears sufficient to warrant, a reversal of the judgment on the ground it is not sustained by the evidence. The facts in this case bear no analogy whatever to the facts in Silgar v. The People, 101 Ill. 563, cited so-confidently by counsel for defendant, and that case is therefore no authority for the reversal of this judgment.

At the trial, the court refused some instructions as to the-law, asked on behalf of defendant, and modified others, and the action of the court in that respect is assigned for error.. It is seen the court gave a very great number of instructions, both on behalf of the People and on behalf of defendant. No-complaint is made as to the charges given on behalf of the People, and it will be assumed they state the law applicable-to the facts with sufficient accuracy. In the great number of' charges,—perhaps twenty in all,—given at the instance of defendant, the law is stated quite as liberally as is allowable for the defence defendant was endeavoring to make. There is no-ground for just complaint on that score. It will be seen, on a close reading, the substance of the refused instructions was. contained in some one or more of the charges that were given. Nor is it perceived there was anything hurtful to the defence in. the modification of instructions asked on behalf of defendant.. It would be a work of very great labor to comment separately upon every objection insisted upon as to the modifications of instructions, and it would answer no useful purpose when done. Such a work may well be omitted when the court can see, from • the whole series of instructions, when read together, as they should be, the jury have been fully and fairly advised as0 to •the law applicable to the facts they are to consider. The principles of law applicable to the facts of this case are very few, and may be readily understood by any one, and might have been stated in a few concise and clearly expressed propositions. The practice of asking so many charges to the jury, upon every conceivable phase of the law, is a pernicious one, and should the court give them, the effect would be to confuse, rather than to enlighten, the jury as to the true issues involved. In the present case, more instructions were given for defendant than the nature of the case required, and as they stated the law very favorably for the defence he was endeavoring to make, there is no just ground for complaint in respect to refusing or modifying instructions.

The testimony alleged to have been discovered since the.' trial, if produced, would simply be cumulative to that already in the record, and the practice is well settled, in this State at least, by the previous decisions of this court, that a new trial will not be granted for the purpose.of permitting the introduction of such additional evidence,—otherwise, it would be necessary to grant a new trial in almost every case, and few convictions would be permitted to stand. On looking into this record, it is seen defendant has had a fair and impartial trial, that he was afforded the fullest opportunity to make whatever defence he had to the charge alleged against him, and if he is now to suffer the penalty imposed by the verdict of the jury, it can only be attributed to his guilty conduct, from the consequences of which he could hardly expect to escape.

The judgment of the Criminal Court must be affirmed.

Judgment affirmed


author: Mr. Justice Shope

text:
    Petefish, Skiles & Co. v. William Watkins.

      Filed at Springfield March 28, 1888.

    1. Payment—misapplication of proceeds of new loan to other indebtedness them as directed. A party having a note in bank, executed another note with security, payable to a third party, who was willing to loan money on the same, and left the new note with the cashier of the bank, upon which the bank received the amount called for on its face: Held, that if the debtor, at the time he delivered the second note to the bank, directed its application upon the other note, or if it was agreed that the proceeds of the last note should be received and receipted on the note first given, the bank was bound to so receive it and apply it, and could not apply the same on other indebtedness of such debtor.
    2. If, at the time of the execution and delivery of a note to a bank, 'there is an agreement between the bank and the principal maker and his surety, that the note is given temporarily until the money can be borrowed elsewhere, and that, when so borrowed, it shall be applied on the note, it will not be in the power of the bank and the principal maker lawfully to divert the proceeds of the loan, and apply it on other indebtedness of the principal to the bank.
    3. A executed a note, with B as surety, to a bank, under an agreement that as soon as the bank should procure a loan for the amount, A and B were to execute another note to the party loaning, and the proceeds should be applied in payment of the note first given. The new note was signed by A and B, the latter telling A to take it to the bank, but not to give it up until he obtained the first note. In a suit on the note in bank, B was allowed to prove his direction to A. The court, in an instruction, stated that this testimony could have no force unless the directions were communicated to the bank: Held, that the admission of the evidence was not reversible error.
    4. Surety—discharge of principal. If the liability of the principal in a note is discharged by payment, the liability of the surety will be extinguished.
    5. New trial—newly discovered evidence.. It is the general doctrine, that new trials will not be granted to enable a party to introduce newly discovered evidence merely cumulative in character, except it is decisive of the case, conclusively leading to a' change in the result; and it must also appear that the party applying for a new trial has used due diligence for the discovery and production of the alleged newly discovered evidence.

      6. Ebboe m favor of party complaining. A plaintiff can not complain of an error in an instruction given for the defendant, which enlarges the burden of proof on the defendant to show a defence, and which in no way operates to the plaintiff’s prejudice.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Cass county; the Hon. Lyman Laoey, Judge, presiding.
    This was an action of assumpsit, in the Cass circuit court, upon a promissory note, given by Elijah Watkins, and appellee, William Watkins, to appellants, (plaintiffs below,) for $1000, dated April 19, 1884, and, in effect, payable on demand, to appellants, bankers. Elijah Watkins was defaulted. William Watkins pleaded tender and payment, upon which issue was taken. The trial by jury resulted in a verdict and judgment for the defendant, William Watkins. On appeal to the Appellate Court for the Third District, this judgment was affirmed, and plaintiffs below prosecute this further appeal.
    On the trial the plaintiffs introduced in evidence the note declared on, and rested. The defendant, William Watkins, introduced evidence tending to show that he signed said note as surety for Elijah Watkins, and that it was understood and agreed by the parties that the loan by appellants, for which said note was given, was temporary, only, and that said note would be taken up, and he released from his liability thereon, as soon as a loan for a like amount could be obtained from some outside party, by appellants, for said Elijah. The cashier of appellants, with whom said agreement was made, represented that he thought the money could be obtained from one Robert Taylor; that upon this agreement and understanding the note was executed by the defendant, William, and the money procured thereon was used by said Elijah in the purchase of a livery stable; that about a month thereafter the cashier of appellants said to defendant, William Watkins, the money to take up said note could be procured of Robert Taylor, if he, William Watkins, would go said Elijah’s security therefor, and a mortgage be given on said livery stable, as. additional security,—to which appellee consented, and upon being presented with a note for the same amount, payable to said Taylor, signed the same, and directed said Elijah to take it to the hank of appellants, and exchange it for the note now in controversy, and that said Elijah took said Taylor note, together with the mortgage mentioned, and delivered the same to appellants, in payment of the note in suit; that the cashier of appellants received 'said Taylor note in payment of the note in suit, but. stated “that the vault was closed,” but the first note (the one sued on) would be cancelled in the morning, and put with the witness’ checks; that the defendant had no notice,, until some nine months thereafter, that the note in suit had not been surrendered up as paid. It is a conceded fact that the $1000 derived from the Taylor loan was in fact applied by the bank upon the individual indebtedness of Elijah Watkins to the bank. ’
    On the part of appellants, the agreement and understanding before mentioned, and the subsequent conversation in respect to the execution of the Taylor note, and the direction said to have been given by Elijah to the cashier of appellants, that the Taylor note was delivered in payment of the note in suit, and the statement of the cashier as to the note being in the locked vault but would be cancelled and surrendered, are denied, and evidence introduced tending to show that no such arrangement or agreement was made; that the Taylor note and the note in suit were executed without any understanding or agreement, whatever, other than as evidenced by the notes themselves that said Elijah owed plaintiffs, by individual note, $1600; that he had $240 to his credit in the bank, and that it was then understood and agreed between Elijah and the cashier of plaintiffs, that the $1000 derived from the Taylor note was to be applied upon his individual indebtedness; that Elijah, at the same time, gave his individual note for $400, and his check for the balance of said $1600, and that the hank had no notice of any direction given by the defendant, William, to said Elijah, in respect to the application of the Taylor note, or its proceeds, in payment of the note in suit.
    Messrs. Ketcham & Gridley, for the appellants.
    Mr. R. W. Mills, for the appellee.
   Mr. Justice Shope

delivered the opinion of the Court:

The controverted questions of fact are conclusively settled" by the judgment of the Appellate Court, and we are not permitted to consider, for that reason, many of the questions pressed upon our attention by counsel, in argument. It is, however, insisted, that the court erred in giving an instruction on its own motion, and in modifying the fourth of appellants’ series, and in the admission of testimony.

The fourth of appellants’ instructions, as asked, told the jury, that before they could find for appellee, on his plea of payment, it must appear, by a preponderance of the evidence, that the note had been paid. And if appellee asserted that the note was paid by the money procured on the Taylor note, he must show, by a preponderance of the evidence, that the plaintiffs agreed with him to accept said Taylor note, or some note to he given, to apply in payment, of the note in suit. The court modified the same by adding: “Or that it (the Taylor note) actually was applied in payment of the note in question, at the time of its delivery.” If Elijah Watkins, at the time he delivered the Taylor note to appellants, directed its application upon the note in suit, appellants would be required to so apply it; or if it was agreed, as testified to by Elijah Watkins, between himself and the cashier of appellants, that it should be received and accepted by the bank in payment of the note in suit, appellants would be bound to so receive it. The instruction, as drawn, omitted this phase of the case clearly made by the evidence introduced hy defendant, and the modification was therefore proper.

The instruction given hy the court on its own motion, was, in substance, that the points in controversy in. this case are: First, was, or was not, there an arrangement or understanding between the plaintiffs and the defendant, William Watkins, in connection with Elijah Watkins, that the note in evidence was given for a temporary purpose, and signed by William Watkins, as surety, until money could be borrowed elsewhere, and then such money should be applied on the note sued on, and the defendant, William, released. Second, when the Taylor note was delivered to Oliver (cashier of appellants) by Elijah, was it, or not, agreed between them that the Taylor note should be applied on the individual indebtedness of Elijah Watkins, etc., or was it agreed to he applied in payment of the note in suit, etc. The jury were then told, if they found the first proposition in the affirmative, their verdict should be for the defendant, William Watkins; and on the other hand, they were told, if they did not believe, from the evidence, there was such an arrangement or agreement as mentioned in the first proposition, and that Elijah consented to the application of the proceeds of the Taylor note on his individual indebtedness, the finding should be for the plaintiffs, on the plea of payment, notwithstanding William Watkins may have directed Elijah to apply the Taylor note on the note in suit, if the bank had'" no notice of such direction. If, upon the second proposition, they found, from the evidence,- that the Taylor note, at its delivery, was agreed to he applied on the note in suit, they should find for the defendant, whether the agreement mentioned in the first proposition existed or not.

The first criticism is, that the jury were, by the first proposition, directed as to whether or not there was an understanding and agreement between the plaintiffs and the defendant, William Watkins, “in connection with Elijah Watkins,” that the note was given for temporary purposes, etc. If this was error,. it is clear it is one of which appellants can not complain. Manifestly, such an arrangement, if made between the plaintiffs and. William Watkins, would require the plaintiffs to receive the proceeds of the Taylor rióte and apply them upon the note in suit. And the fact that the court seemingly required that the arrangement should have been made between the plaintiffs, and William Watkins and another, thereby enlarging the burden of proof upon the defendant, William Watkins, could in no way have operated to the prejudice of appellants.

It is also insisted the instruction is erroneous, in that the jury were thereby told that if they found affirmatively upon the first proposition, they should find for the defendant, notwithstanding they also might find that Elijah consented to the application of the Taylor note upon his individual indebtedness. This was not error, for if appellee was induced to execute the note in suit, and, subsequently, the Taylor note, under the arrangement and understanding in the first proposition mentioned, it would not be in the power of the plaintiffs, even with the consent of Elijah, lawfully to divert the proceeds of the Taylor note, and apply the same upon the individual indebtedness of Elijah Watkins, and thereby leave both of saidi notes outstanding against appellee.

The only remaining criticism is as to that part of the instruction which told the jury, if they found that the Taylor note was, at its delivery, actually applied in payment of the note in suit, they should find for the defendant, whether there had been any previous arrangement or agreement, or not. Whether the Taylor note, or its proceeds, was received by appellants in payment and discharge of the note in suit, was a question of fact, which was properly submitted to the jury, under the instructions. The liability of appellee being that of surety, if the liability of his principal was discharged by appellants receiving the Taylor note, or its proceeds, in payment, the liability of appellee was extinguished.

It is also insisted that the court erred in permitting appellee to testify that when he signed the Taylor note he handed it to said Elijah, to take to the bank, and told him not to give it up until he got the first note,—the note in suit. It may be conceded that this evidence could have no force, and it was stated by the court, in the instruction given on its own motion, that this evidence was entitled to no force, unless communicated to appellants, or they had notice of the direction thus given. Its admission, however, was not reversible error. In view of the facts, it can not be seen that it could have prejudiced appellants’ case, if inadmissible. The jury were fully and correctly instructed in respect of this matter. By appellants’ first instruction they were expressly told, that although they might believe, from.the evidence, that appellee “instructed and directed his son, Elijah, to take said Taylor note and mortgage to the bank of plaintiffs, upon the condition that plaintiffs cancel and deliver up the note in suit,” yet, unless it was shown, by a preponderance of the evidence, that there was an agreement by appellants that the Taylor note, etc., should be accepted by appellants as payment of the note in suit, the jury must find that it was unpaid, etc.

It is also insisted that the court erred in overruling the motion for a new trial, predicated upon newly discovered evidence. It will be sufficient to say that the evidence alleged to be newly discovered related to declarations alleged to have been made by the defendant, William Watkins, in relation to his liability, etc., upon the note sued on. Aside from the fact that the witness who, it is alleged, would testify thereto, is so contradicted as to render it doubtful whether such declarations were made, the evidence, if admitted, would not be conclusive of the case, and is cumulative, merely, to evidence introduced by appellants at the trial. It is the general doctrine, that new trials will not be granted to enable a party to introduce evidence merely cumulative in character. (Schlencker v. Risley, 3 Scam. 483; Crozier v. Cooper, 14 Ill. 139; Shelly v.'Boland, 78 id. 438; Laird v. Warren, 92 id. 204; McCollom v. Indianapolis and St. Louis Railroad Co. 94 id. 534.) And if not conclusive upon the issue, a new trial will not be granted,—that is, the evidence must be of such character and importance in respect to the issue, that it satisfactorily appears that upon .a re-trial, with the newly discovered evidence, the result will be different, the rule being, that where the evidence sought to be introduced is cumulative, new trials will not be granted unless the evidence is decisive of the case, conclusively leading to a change in the result, and it must appear that the party •offering it has used due diligence for its discovery and production. Smith v. Shultz, 1 Scam. 490; Martin v. Ehrenfels, 24 Ill. 187; Chapman v. Burt, 77 id. 337; Hayes v. Houston, 86 id. 487; Wood v. Echternach, 65 id. 149.

It is manifest the evidence here offered was not of the character indicated, and the motion for a new trial was properly •overruled.

Finding no error, the judgment of the Appellate Court is .affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Edward G. Asay v. Marshall J. Allen et al.

      Filed at Ottawa May 9, 1888.

    1. Assignee on insolvent debtor—failv/re to account—remedy in ■chancery. . "Where the assignee of an insolvent debtor fails to make any dividend, or to render any account to the creditors of his acts and doings, or make settlement, the creditors may compel a settlement by bill in chancery.
    2. Same—duty to keep an account—evidence to show the state of his ■account. It is the duty of the assignee of an insolvent to keep an account of all moneys received and disbursed by him under the deed of assignment. If he fails to do so, and mixes the trust funds with his own, he will have no right to object to any other proper evidence as to the state of his account.

      3. So on bill by a creditor of an insolvent firm, against the assignee, when the assignee has kept no books of account of the estate and fails to render an account, his sworn answer filed in another case in which he was a party, is proper evidence against him to show the total liabilities of the insolvent firm entitled to a distributive share of the assets in his hands, and a certified copy of his report, as trustee of the firm, made to the proper court, is competent and proper evidence to show the amount of money received by him.
    4. Same—interest, with a/nmial rests. Where the assignee of an insolvent, or other trustee, mixes the trust funds with his own, neglects to settle his accounts, and when called upon by bill in equity to render an account, fails to render any satisfactory account or show what disposition he has made of the trust fund, a decree requiring him to pay interest on the sum due the complainants, and allowing annual rests in the computation of interest, is proper.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. W. C. Asay, for the appellant:
    Where no demand for payment has been made, interest begins to run only from the time of suit brought. Knapp v. Marshall, 56 Ill. 362; Stephens v. Wheeler, 43 id. 123.
    If a trustee retains balances in his hand he ought to have invested, or if he mingles the money with his own, or neglects to settle his account for a long time, etc., he will be required to pay simple interest at the rate established by law. Perry on Trusts, sec. 468; King v. Talbot, 40 N. Y. 86; Duffy v. Duncan, 35 id. 187; Young v. Brush, 38 Ill. 294; Nelson v. Hagerstown Bank, 27 Md. 53; Cook v. Addison, L. R. 466; Owen v. Peebles, 42 Ala. 338; Wistav’s Appeal, 54 Pa. St. 60; Beverleys v. Miller, 6 Munf. 99; Munford v. Murray, 6 Johns. Ch. 1; Diffenderffer v. Winder, 3 G. & J. 341; Jacot v. Emmet, 11 Paige, 142; Keller v. Rathburn, 4 id. 102; De Peyster v. Clarkson, 2 Wend. 77; Garniss v. Gardner, 1 Edw. Ch. 128; Spear v. Tinkham, 2 Barb. Ch. 211; Manning v. Manning, 1 Johns. Ch. 527; Brown v. Rickett, 4 id. 303; Williamson v. Williamson, 6 Paige, 298; Dunscomb v. Dunscomb, 1 Johns. Ch. 508; Minuse v. Cox, 5 id. 448; Cogswell v. Cogswell, 2 Edw. Ch. 231; Gray v. Thompson, 1 Johns. Ch. 82; Armstrong v. Miller, 6 Hamm. 118; Aster’s Estate, 5 Whart. 228; Merrick’s Estate, 2 Ash. 285; Worrell’s Appeal, 23 Pa. St. 44; Graves’ Appeal, 50 id. 189; Hess’ Estate, 69 id. 454; Peyton v. Smith, 2 Dev. & Bat. Eq. 325; Jameson v. Shelly, 2 Humph. 198; Dyott’s Estate, 2 W. & S. 655; In re Thorp, Davies, 290; Carr v. Laird, 27 Miss. 544; Lomax v. Pendleton, 3 Call. 538; Handy v. Snodgrass, 9 Leigh, 484; Dillard v. Tomlinson, 1 Munf. 183; Carter v. Cutting, 5 id. 223; Wood v. Garnett, 6 Leigh, 271; Miller v. Beverleys, 4 Hemm. & M. 415; Chase v. Lockerman, 11 G. & J. 185; Ringgold v. Ringgold, 1 H. & G. 11; Arthur v. Manster, 1 Harp. Eq. 47; Rowland v. Best, 2 McCord’s Ch. 317; Lyles v. Hattan, 6 G. & J. 122; Griswold v. Chandler, 5 N. H. 497; Lund v. Lund, 41 id. 355; Turner v. Williams, 7 Yerg. 172; Williams v. Powell, 16 Jur. 393; Domford v. Domford, 12 Ves. 127; Knowlton v. Bradley, 17 N. H. 458; Wright v. Wright, 2 McCord’s Ch. 185.
    There may he an exception to the rule that a deposit of the-trust money in bank in the name of the trustee, or a mixing of the trust funds with his own, will impose a liability of legal interest. There must be some element of a breach of trust in the transaction, or a breach of duty. McKnight v. Walsh, 23 N. J. Eq. 136; Rapalje v. ZZhZZ, 1 Sandf. Ch. 339.
    If, therefore, the sums are small, and the trustee receives-no credit or profit from the act, or if the act was beneficial to-the cesZztt qzte Zz-ztsZ, legal interest will not be imposed upon the trustee. Rapalje v. Hall, 1 Sandf. Ch. 399; Graves’ Appeal,. 50 Pa. St. 189; Bond v. Abbott, 42 Ala. 499.
    Mr. L. S. Hodges, for the appellees:
    No claim of expenses was made in the pleadings or in the-proofs. The assignee must show, by a preponderance of evidence, that he has executed the trust, and must render an account of his expenses. Jenkins v. Doolittle, 69 Ill. 415.

      The deed of assignment does not provide for compensation, and without such provision none can he allowed, even if any evidence had been given on the matter in the court below. Constant v. Matteson, 22 Ill. 546; Hough v. Harvey, 71 id. 72; Huggins v. Rider, 77 id. 360.
    As to the propriety of the decree for interest with annual rests, see Barney v. Saunders, 16 How. 535; Perry on Trusts, sec. 821; Ogden v. Larrabee, 57 Ill. 389; Jenkins v. Doolittle, 69 id. 415; Cool v. Jackman, 13 Bradw. 560.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by appellees, in the circuit court of Cook county, against Edward G-. Asay, to require an accounting of property which passed into his hands as assignee of the firm of Gage & Bice, who had made an assignment for the benefit of creditors. It is alleged in the bill that on the 2d day of March, 1874, Gage & Bice owed the complainants $34,341.97; that being so indebted, they, on the 29th day of December, 1874, executed and delivered to the defendant a general assignment of all their property, for the benefit of all their creditors; that Edward G. Asay accepted the trust, and acquired possession of all the property and effects of the assignors, from which he realized a sum exceeding $20,000. It is also alleged that the complainants have applied to the assignee for a statement of the trust, and for such dividends as they may be entitled to receive, but have been unable to obtain either. The bill prays for discovery, accounting, and payment of such sum as they may be entitled to receive under the assignment. The defendant put in an answer to the bill, in which he admits the execution and delivery of the assignment, in December, 1874; alleges a contract for fees, and payment of the same out of certain moneys, before the same were transferred to him as assignee. The defendant, in his answer, also avers that there came into his hands, as assignee, the snm of $11,197.27, and no more; that claims were made and allowed against said fund, amounting to $602,000; that a dividend of one and five-eighths per cent was allowed and paid ■over to creditors; that complainants were notified of these facts, but refused to accept such dividend.; denies that he has ■ever refused to show complainants a statement of the affairs ■of said trust, or any other papers in his possession; avers that he frequently offered to pay to complainants their dividend; that the reason he could not give complainants a fuller statement of the affairs of the trust, is because one Parker, in whose ■custody the books and accounts were kept, is dead, and the whereabouts of the same is unknown to defendant, although he has made frequent and diligent search for the same. The •complainants filed a replication to the answer, and on the hearing the court found, from the evidence, that complainants’ ■debt amounted to the sum of $33,776.50; that the debts against the firm of Gage & Rice amounted to the sum of $430,000; that the defendant, as assignee, had received the sum of $19,-365.72; that complainants were entitled to a dividend of four and a half per cent within six months after the date of the ■assignment. The court therefore decreed that the defendant pay to the complainants, within ten days of the entry of this •decree, the principal sum of $1519.94, the same being four ■and a half per cent of their demand against Gage & Rice, together with interest to be computed thereon from and after six months after the date of said assignment, to-wit, from June 29, 1875, with annual rests, from and after two years from the date of said assignment, to-wit, from December 29, 1876, ■amounting to the sum of $2850.19 for principal and interest.

Neither party seems to be satisfied with the decree, the defendant claiming that the amount allowed the complainants in the bill was too much, and the complainants have assigned •cross-errors, under which they claim that the amount decreed is not enough. The defendant never rendered to the creditors •.any statement of account in regard to his doings as assignee, and it is plain that complainants, as creditors, had a clear-right to compel a settlement, by bill, and the only question to-be determined is, whether the decree is in all respects correct, under the evidence. There is no dispute in regard to the-amount of complainants’ debt against Gage & Bice. If the-amount of debts existing against Gage & Bice in favor of all their creditors, as found by the court, is correct, and if the amount of money received by the assignee, as found in the-decree, is correct, then it is plain that the amount decreed complainants is right.

For the purpose of proving the amount of the debts held by the various creditors against Gage & Bice, the complainants, put in evidence an answer of the defendant, E. G. Asay, filed on the 23d day of February, 1877, in a cause in equity pending in the Superior Court of Cook county, wherein the First National Bank of Sioux City, and others, were complainants, and E. G. Asay and others were defendants, in which he stated “that the total amount of the liabilities of the said firm of Gage & Bice entitled to a dividend or distributive share of the assets in this defendant’s hands, as said assignee of said firm, amounts to the sum of about $430,000.” The answer was signed by E. G. Asay in person, and also sworn to by him before a proper officer. There was other evidence before the court in regard to the amount of debts, but we think this the most reliable proof contained in the record, and, under this evidence, we think the court was fully warranted in arriving at the conclusion that the debts amounted to the sum of $430,000.

For the purpose of establishing the amount of money which had been received by the assignee, the complainants put in evidence a certified copy of a report of E. G. Asay, trustee of Gage & Bice, made to the District Court of the United States for the Eastern District of Pennsylvania, in the matter of John A. Bice, bankrupt, which contained the following: “1875. January 28.—Total amount of cash received after deduction of November and December bills, which were a lien upon the proceeds of sale, $19,365.72.” This report was prepared soon ■after the assignment was made, when the transactions were ■fresh in the mind of the assignee, and when he was not liable to be mistaken, and we regard the evidence entitled to much weight on the point involved. There was other evidence introduced, but the court thought, doubtless, this was the most reliable, and found the amount that passed into the hands of the assignee as stated in the report, and we regard this finding as correct, it being fully warranted by the evidence. The complainants ought not to find fault with these findings, as they were based upon evidence they introduced.

As to the defendant,—the assignee,—we do not think he has any just ground to complain. If he had kept a regular account •of all moneys received and disbursed under the deed of assignment, as it was his duty to do, it would have been an •easy task, on the hearing, for him to have established, beyond ■controversy, the true condition of the estate. But no book containing any account of his transactions was produced; no bank-book showing the deposit of money, as assignee, was shown; no checks showing the payment of money were produced ; no receipts were brought in,—nothing whatever in the shape of documentary evidence came from the defendant to aid the court in determining the true condition of the estate. In connection with this, the defendant admitted, in his evidence, that within six months from the date of the assignment he mixed the trust funds with his own.

It is also urged that the court erred in requiring the defendant to pay interest on the amount decreed complainants, and in allowing annual rests in computing interest. It may be difficult to lay down a general rule which would mete out exact justice in all cases where a trustee has used the trust funds in his own business, or failed to account in proper time. Here it is apparent that the trustee mixed the trust funds with his •own money, deposited it in bank in his own name, neglected io settle his account, and w'hen called upon in a court of equity to render an account, he failed to render any satisfactory account, or state what disposition had been made of the trust funds. In Perry on Trusts, section 471, the author lays down, the following rule: “The burden is on the trustee to show that he made no profits or received no benefits from the money, and if he refuses to account, or show the amount of profits received, the court will give compound interest, in order that it may be certain that the cestui que trust gets the profits of the trade or business in which the trustee has employed the money.” This is in harmony with the decision of this court in Ogden v. Larrabee, 57 Ill. 398, where it is said: “The rule-seems to be, that in all cases where the trustee has used the trust fund, and the court can see, from the evidence, that the trustee has realized large gains and profits to himself, and has failed to keep any exact account of the same, or has refused to render an account to the beneficiary, the law will require him, in order that complete justice may be done, to account-for the original fund so used, with interest, computed with annual rests.” It was the duty of the trustee to convert the property assigned to him into money, and without delay distribute such money among the creditors. Had this course been pursued, the complainants would have realized their share of the trust funds years ago; but owing to the failure of theassignee to discharge his duty in this regard, complainants have been deprived of the use of money justly'belonging to them, and this money has been used by the trustee in his own affairs. Under such circumstances justice demands that he should pay interest with annual rests, as provided in the decree.

The judgment of the Appellate-Court will be affirmed.

Judgment affirmed.