author: PRESIDING JUSTICE DOVE

text:
    Arlie Love and Ethel Love, Plaintiffs-Appellants, v. Jack Levisey, Defendant-Appellee.
    Gen. No. 10,989.
    Second District.
    November 5, 1956.
    Released for publication November 23, 1956.

      L. E. Ellison of Sterling, for appellants.
    L. D. Spanlding, Jr. of Princeton, for appellee.
   PRESIDING JUSTICE DOVE

delivered the opinion of the conrt.

On June 24, 1954, James F. Haffey borrowed $700 from the Tampico National Bank of Tampico, Illinois, and, as evidence thereof, Haffey and the plaintiffs executed their promissory note for that amount payable to the order of the bank in installments of $50 per month with 6% interest per annum and delivered the same to said bank.

On July 1,1954, Haffey borrowed the further sum of $2137.50 from said bank, and as evidence thereof Haffey and the plaintiffs executed their promissory note for $3007, payable to the order of the bank eighteen months after date in installments of $170 per month with interest included, and delivered the same to the bank. This note recited that it was secured by a chattel mortgage. Simultaneously with the execution of the $3007 note on July 1, 1954, Haffey executed and delivered to the plaintiffs a chattel mortgage which described Haffey as mortgagor and the plaintiffs as mortgagee. This mortgage recited that Haffey was a resident of Princeton, Bureau County, Illinois, and was indebted to plaintiffs in the sum of $3007 and that the mortgage was executed for the purpose of securing the payment of that indebtedness according to the conditions of the $3007 note dated July 1, 1954, due January 1, 1956, payable $170 per month, interest included. By the provisions of this chattel mortgage, Haffey mortgaged to the mortgagees a new 1954 Buick automobile, fully describing it. This mortgage was duly acknowledged and filed for record in the office of the Recorder of Deeds of Bureau County on July 3, 1954.

Upon the delivery of the $3007 note of July 1, 1954, to the bank and the delivery of the chattel mortgage to the plaintiffs, the bank cancelled the $700 note, dated June 24, 1954, and issued its cashier’s check for $2137.50 payable to the order of the Pager Buick Company of Princeton, Illinois, and delivered the cashier’s check to Haffey, who, in turn, delivered it to the Pager Buick Company. The Pager Buick Company accepted the check in full payment of the Buick automobile described in the chattel mortgage, Haffey having theretofore made a payment thereon in the sum of $600.

On or about August 1, 1954, the defendant, Jack Levisey, purchased the automobile from Haffey, paying him $1200 therefor. On August 5,1954, Haffey paid the bank $170, which was duly credited by the bank on the note. Three weeks later Levisey sold the automobile to Chris Sears of Princeton for $2500 and Haffey left the state, and plaintiffs have been nnable to locate either him or the automobile.

On December 11, 1954, the instant complaint was filed by Arlie Love and Ethel Love, the mortgagees, against Jack Levisey. The complaint consists of two counts. One is entitled “Separate Action in Chancery” and alleges that on July 1, 1954, the plaintiffs loaned to Haffey, a resident of Bureau County, $3007, who thereupon executed and delivered to them a promissory note for that sum with 4% interest, which note was secured by a chattel mortgage upon a described Buick automobile; that on July 3, 1954, the mortgage was duly filed in the office of Becorder of Deeds of Bureau County; that about August 1, 1954, Haffey sold the automobile to Levisey without the consent of the plaintiffs and thereupon left the state and his whereabouts is unknown to the plaintiffs; that thereafter Levisey sold the car to a used-car dealer in Princeton and received, therefor, $2500. This count prayed that this sum be impressed with a trust in favor of the plaintiffs and that defendant be ordered to pay plaintiffs this amount.

The second count was entitled: “Separate Action at Law” and made the same allegations with reference to the execution and delivery of the $3007 note by Haffey to plaintiffs, which note, it was alleged, was secured by a chattel mortgage on the described Buick automobile; that the chattel mortgage was duly filed for record on July 3, 1954; that Haffey sold the automobile on August 1, 1954, to Levisey, who, in turn, sold it to a used-car dealer, receiving therefor, $2500; that Haffey left the state; that the value of the automobile was in excess of $3000 and, by this count, plaintiffs demanded judgment against the defendant for that sum.

The answer of the defendant denied each and every allegation of the complaint. The issues thus made were submitted to the court for determination upon a stipulation of facts as above narrated, resulting in a finding and judgment for tbe defendant in bar of tbe action and that the plaintiffs take nothing by their suit. To reverse this judgment, plaintiffs appeal.

Counsel for appellee call our attention to the allegations in both counts of the complaint to the effect that plaintiffs loaned Haffey $3007 on July 1, 1954, and that Haffey thereupon executed and delivered to plaintiffs a promissory note for that sum, which note was secured by a chattel mortgage upon the described Buick automobile. Counsel state these allegations were denied by defendant’s answer and the facts, as stipulated, are that Haffey did not borrow any money from the plaintiffs, but from the Tampico Bank; that Haffey did not execute or deliver any note to the plaintiffs, but the note was delivered to the bank and that the note delivered to the bank was not secured by a chattel mortgage and argue that it is a fundamental rule that a plaintiff must recover on the case made by his pleadings; citing Fornoff v. Smith, 281 Ill. App. 232, 236; McFarland v. Town of Bourbonnais, 339 Ill. App. 328, 333; and, Feder v. Midland Casualty Company, 316 Ill. 552; and plaintiffs, having failed to prove these allegations of their complaint, the judgment of the trial court should be affirmed.

Counsel for appellants concede this rule to be correct, but insist that it has no application here; first, because this question of variance was not raised in the trial court and cannot be argued for the first time on appeal; second, because the reason why a plaintiff must state facts constituting his cause of action and upon which he relies to recover is to enable the defendant to prepare his defense and prevent the defendant being taken by surprise by the evidence offered and in the instant case there is no element of surprise as no objection to any evidence was ever made in the trial court, but the parties stipulated all the facts and; third, after this question was first raised in this court by appellee’s brief, filed on September 17, 1956, appellants, on September 26, 1956, filed in this court, in accordance with Eule 25 of this court, their motion for leave to amend paragraph one of each count of their complaint to read as follows, viz.: “That on the 1st day of July, 1954, one James F. Haffey borrowed the sum of $3007 from the Tampico National Bank of Tampico, Illinois and executed and delivered to said bank his note in that amount; that plaintiffs co-signed said note; that as a part of said transaction, said Haffey executed and delivered to plaintiffs a chattel mortgage, mortgaging a 1954 Buick automobile, Serial No. 6all02455.” No suggestions in opposition to this motion were filed by appellee and the motion to amend was taken with the case.

What this amendment does is to conform the pleadings to the proof. This is expressly authorized by the Civil Practice Act, which provides that in all appeals the reviewing court may, in its discretion, and on such terms as it deems just, exercise all or any of the powers of amendment as the trial court. (Ill. Rev. Stat. 1955, chap. 110, sec. 92 (1) (a)).

We are not unmindful of the fact that the jurisdiction this court exercises is appellate and our review is of the record made in the trial court. It is difficult to understand why counsel, who prepared this complaint, would stipulate to facts at variance with its allegations and, having done so, would take no steps to make the pleadings conform to the facts until the variance was called to the attention of counsel by the argument filed in this court on behalf of appellee. It was not incumbent upon counsel for defendant in the lower court to call this matter to the attention of opposite counsel. However, the proposed amendment conforms the pleadings to the proof. Appellee makes no objection to the allowance of appellants’ motion to so amend the complaint. In furtherance of the proper administration of justice and being expressly authorized by our Civil Practice Act and Buie 26 of this court, the motion for leave to amend is sustained and we shall treat the complaint as so amended.

Counsel for appellee state that this transaction was a peculiar one, that the note given to the Tampico Bank was not the note secured by this chattel mortgage and that the mortgage failed to describe the obligation secured by it and is, therefore, fictitious and fraudulent as to appellee. In support of this contention counsel cite and rely upon John Deere Plow Co. v. Hershbarger, 260 Ill. App. 227, and Morris v. Robert Tillson, 81 Ill. 607.

The chattel mortgages involved in the Hershbarger case recited that they were given to secure a note executed by Gr. W. Burnett to S. E. Dillavou and assigned to the John Deere Plow Company of Moline, Illinois. The stipulated facts were that Burnett executed a note payable to Busey’s State Bank and that the indebtedness evidenced by that note was the indebtedness of Burnett to that bank and that the note was, at the time of its execution, and at all times since, in the possession of and owned lay Busey’s State Bank. What the court held was that, so far as this note was concerned, the chattel mortgages were fictitious and including it in the mortgages under' a false statement of facts was a constructive fraud upon the creditors of Burnett. The fraud in that case consisted of the fact that there was no debt in the amount indicated by the mortgages to the mortgagee, John Deere Plow Company, while the mortgage recited that there was. In the instant case, the mortgagor executed and delivered the mortgage to the mortgagees. It recited that the mortgagor was indebted to the mortgagees in the sum of $3007 and that the mortgage was executed for the purpose of securing the payment of that indebtedness according to the terms and conditions of the note for that snm, dated July 1, 1954, due January 1, 1956, and payable at the rate of $170 per month. There were no false allegations in the mortgage which the mortgagor executed. It does not name the payee of the note, nor set forth any fictitious obligation. It was given to secure the payment of an indebtedness. The mortgagor’s indebtedness to the mortgagees was contingent, it is true, but it was an indebtedness.

In Schweer v. Schwabacher, 17 Ill. App. 78, at page 80, it is said that a mortgage is good without any note and if a bona fide debt exists and that debt is sufficiently described in the mortgage to protect creditors and third parties from being misled, it is sufficient. In 14 C.J.S. Chattel Mortgages, sec. 37, p. 644, it is stated that a chattel mortgage may be given to secure an unliquidated debt and that the debt need not be evidenced by a note and section 40 of the same article states that a mortgage may be given for the purpose of indemnifying another against a future and contingent liability such as to secure the mortgagor’s endorsee, surety or co-surety. In the instant case this mortgage was given to secure the co-signers of a note which evidenced, as between the signers of the note, the sole indebtedness of the mortgagor.

In Southern Surety Company v. Peoples State Bank, 332 Ill. 362, 365, the court cited with approval and quoted from Goodheart v. Johnson, 88 Ill. 58 where it was held that if a chattel mortgage was in truth and in good faith given to secure against a contingent liability as surety, the latter would be a good consideration and sufficient to sustain the mortgage and if the mortgagee had not in fact paid the debts for which he was surety, if he would have them to pay, he would be entitled to hold the mortgaged property or its proceeds to apply to the payment of such debts.

Morris v. Tillson, 81 Ill. 607, also cited and relied upon by appellee is inapplicable. What the court said and held in that case was that a chattel mortgage could not he so extended as to become a lien for an indebtedness other and different than that described in and professed to be secured by the mortgage.

In the instant case, the mortgagor’s obligation to the mortgagees was contingent upon the mortgagor’s failure to pay the bank his note of $3007 as he had promised and obligated himself to do. His obligation, as between himself and the Loves, became fixed and determined when he defaulted in his payments to the Tampico Bank as provided in the note evidencing his indebtedness to the bank upon which note the mortgagees were co-signers. The filing or recordation of the mortgage gave constructive notice of its existence and its recitals were sufficient to put anyone interested upon inquiry, which inquiry, would have led to the discovery of the existence of the claim of the mortgagees. The subsequent sale of the chattel must, therefore, be held to be subject to the lien acquired by the mortgagees. (Schillo v. White, 207 Ill. App. 390, 392; Ill. Law and Practice, Vol. 8, p. 239, Title, Chattel Mortgages, sec. 209.)

Appellee’s defense is predicated upon the fact that he did not know of the existence of this chattel mortgage and his counsel argue that he exercised every precaution within his knowledge to protect himself in his transaction with Haffey, the mortgagor. Counsel call our attention to that part of the stipulation which discloses that the certificate of title, which appellee received from Haffey, did not show any lien upon this automobile and that appellee’s wife drove to Springfield and checked with the office of the Secretary of State in order to ascertain whether the certificate of title was valid, interviewed the Pager Buick Company, and ascertained that the car was paid for by a cashier’s check, issued by the Tampico National Bank and then went to the bank and was unable to locate anyone familiar with the transaction.

What all this shows is that appellee did everything except the,one thing which the law required and which would have'given him the information he needed. Had he gone to the office. • of the Recorder of Deeds of Bureau County, he would have learned that Haffey, the party with whom he-was dealing, had executed a chattel mortgage upon this automobile, which appellee was contemplating purchasing just a month before to secure an indebtedness of $3007. His counsel state that obviously appéllee realized he was making a good deal when he paid $1200 for a car only a month old and which cost more than $2800, but insist that appellee never consciously attempted to defraud the plaintiffs. That appellee apparently did make a good deal is evidenced by the fact that in' less than three weeks after he bought this car from Haffey, he, appellee, sold it for $2500. Could it be that the reason he neglected to examine the records at the Recorder’s Office was the anticipation of realizing just this profit?

We hold that the chattel mortgage held hy appellants was a valid lien upon the automobile described therein at the time appellee acquired that automobile and at the time he disposed of it for $2500. This necessitates a reversal of the judgment of the circuit court and this cause is remanded to that court with directions to proceed in accordance with the views expressed herein.

Judgment reversed ■ and cause remanded with directions.

CROW and EOVALDI, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    John W. Hicklin, Plaintiff-Appellee, v. Lawrence F. O’Brien, Defendant-Appellant.
    Gen. No. 10,993.
    Second District.
    November 5, 1956.
    Rehearing denied November 26, 1956.
    Released for publication November 26, 1956.
    Pedderson, Menzimer and Conde, ó'f Rockford;-for' defendant-appellant; L. W. Menzimer "and Dale F. Conde, of Rockford, of counsel.

      Foltz, Haye & Keegan, of Rockford, for plaintiffappellee; Frederick H. Haye and Thomas A. Keegan, both of Rockford, of counsel.
   PRESIDING JUSTICE DOVE

delivered the opinion of the court.

The parties hereto entered into the following written contract, viz.:

“CONTRACT OF SALE

“Agreement made this 3rd day of August, 1954, between Lawrence F. O’Brien, vendor, and John W. Hicklin, purchaser.

“1. Whereas, vendor has for several years exercised his profession of a lawyer at 119 North Church Street, Rockford, Illinois, and is now desirous of disposing of said practice and the purchaser is desirous of establishing himself as a successor to said practice, having been associated as a lawyer in business with vendor for several years. Now, therefore, the said vendor agrees to sell, and purchaser agrees to purchase the said practice and the good will and benefits thereof together with all the fixtures, furniture, equipment, library, accounts, files and all assets of said law business, in accordance with inventory attached hereto, and located in suite 406-407 North State Building, Rockford, Illinois, under the following terms:

“2. Purchaser shall take possession on September 1,1954, and shall pay to seller 32%% of the net income from said business for a period of seven consecutive years from said date, payable three times each year, beginning Jan. 1, 1955, and continuing May 1, 1955, and September 1, 1955, and on the same date of each month during the succeeding years until the seven years have expired.

“In addition purchaser shall pay to seller the sum of $2500.00 for the fixtures and equipment as set forth in inventory attached hereto at the rate of $500.00 per year payable on the first day of each year beginning Sept. 1, 1955, and continning for four successive years thereafter, without any interest charge.

“Seller will execute the required bill of sale to transfer all items covered by this agreement upon payment in full under the terms as stated herein.

“3. Said vendor agrees not to practice law or act directly or indirectly as a partner or assistant to or with any other lawyer (with exception of purchaser) in Winnebago County.

“4. The firm name of O’Brien and Hicklin shall be maintained during the term of this agreement, however purchaser has the right to include and add the name or names of additional members of the firm and has the right to use said name even after this contract has been paid in full.

“5. It is mutually agreed that if any of the said installments of the purchase price be not paid when due, or if purchaser shall abandon this contract said contract may be rescinded by vendor, and all payments shall be forfeited to said vendor, who shall afterwards be at full liberty to resell said business and assets as inventoried herein. In such event the purchaser obligates himself to seller not to establish a law practice or act directly or.indirectly as partner or assistant to or with any other lawyer in Winnebago County for a period of five years after such forfeiture or abandonment.”

On September 1, 1955, John W. Hicklin, the purchaser, filed the instant verified complaint, consisting of two counts, in the Circuit Court of Winnebago County. After alleging the execution of the foregoing contract, Count One of the complaint alleged that both parties were lawyers, admitted to practice in Illinois and that O’Brien, prior to August 3, 1954, had employed Hicklin in his law office for several years; that plaintiff took- possession of defendant’s law office on September 1,1954, and defendant left Rockford and took np his residence in the state of California; that plaintiff maintained said office under the name of O’Brien and Hicklin, under the terms of the agreement, and. on January 1,1955, prepared a statement of the business done from- September 1, 1954, to January 1, 1955, and sent the same to defendant with his check for the amount shown' by the statement to be due O’Brien, which statement and check O’Brien received and retained. This count of the complaint then alleged that on or about April 1, 1955, the defendant, without notice to plaintiff, returned to Rockford and, without any acquiescence on the part of the plaintiff, moved into plaintiff’s office, took possession thereof and of all the physical equipment and of all books, records, accounts and moneys and, over the protests of plaintiff, has continued to keep possession thereof; that although the plaintiff is willing to account to the defendant under the contract, he has been unable to do so because defendant is in possession and control of all the records and books of the plaintiff and since the return of defendant to Rockford on April 1, 1955, defendant has engaged actively in the practice of law, contrary to the provisions of said contract. This count then charges that unless defendant is restrained from doing so and unless defendant is ordered to turn over to the plaintiff all the books, records, accounts and moneys of the law business known as O’Brien and Hicklin, plaintiff will be irreparably damaged. The prayer of this count is that the defendant be ordered to turn over to plaintiff all records, books and accounts and money of the law practice and business known as O’Brien and Hicklin; that defendant be ordered to account to plaintiff for the money received by him from the maintenance of the law practice after April 1,1955, and that defendant be.enjoined from engaging-in the practice of law in Winnebago County, Illinois. The second count of the complaint was substantially the same as the first, but sought to recover a money judgment against the defendant in the sum of $50,000.

The defendant answered and filed a counterclaim, neither of which are abstracted. By his answer, the defendant, among other things, admitted the execution of the contract which forms the basis of this action, admitted that he left Rockford on or about September 1, 1954, and admitted that plaintiff took possession of the office, rendered an account about January 1, 1955, and sent defendant a check as alleged. The answer then stated that the defendant returned to Rockford on or about April 1, 1955, and to the law office of O’Brien and Hicklin, but averred that he did so upon due notice to plaintiff and with his consent and acquiescence. The answer denied that defendant breached the contract and averred that the contract was terminated and rendered of no effect by the mutual consent of the parties thereto.

A hearing before the chancellor resulted in a decree which found that the plaintiff and the defendant, prior to August 3, 1954, had been associated in the practice of law under the terms of an oral agreement whereby the plaintiff received 32%% of the net income of the office or $125 per week, whichever was greater. The decree also found that on August 3, 1954, the parties entered into the contract hereinbefore set:forth and that the plaintiff, on January 1, 1955, accounted to the defendant for the income of said business and practice in accordance with the contract and paid to the defendant 32%% of the net income of the business to January 1, 1955, which defendant accepted; that on or about April 1, 1955, defendant returned to Rockford, re-entered the office where the plaintiff was carrying on the practice of law, announced to the plaintiff that said practice would thenceforth be upon the basis of their relationship prior to the contract of August 3, 1954, and defendant then and there resumed the practice of law; that plaintiff did not acquiesce in defendant’s returning to the City of Rockford and his resumption of the practice of law, did not agree that said law business and law practice would be carried on upon the basis of the oral contract which existed prior to August 3,1954, and did not agree to the cancellation or annulment of said contract. The decree also found that defendant had no just or legal cause to violate the contract which he breached by engaging in the practice of law in Winnebago County; that said breach has continued from April 1, 1955, to May 4, 1956, the date of the decree and that irreparable damage has been done the plaintiff and he would continue to be irreparably damaged if the defendant continued to practice law in Winnebago County. The decree found there had been no accounting between the parties since January 1, 1955, and referred the cause to the master-in-chancery to state the account and report the same to the court within ninety days. The decree further found that no evidence was introduced in support of count two of the complaint and that the evidence did not sustain the allegations of the counterclaim and that this count two and the counterclaim should be dismissed.

In accordance with these findings the decree restrained the defendant, O’Brien, from practicing law in Winnebago County so long as the plaintiff, Hicklin, should perform the obligations to be performed by him under the contract of August 3, 1954. The decree also provided that when the plaintiff had completed the performance of all the obligations to be performed by him under the contract, the injunction should become permanent and the defendant permanently restrained from the practice of law in Winnebago County. To reverse this decree, defendant prosecutes this appeal.

In this court appellant contends that the contract of August 3,1954, is void as being in restraint of trade and, therefore, contrary to public policy and that the performance of the contract requires the plaintiff and hiria to engage in illegal and unethical practices. Appellant insists that the evidence discloses the plaintiff acquiesced in defendant’s breaching the contract and that plaintiff himself breached the contract prior to the alleged breach by the defendant and thereby excused performance of the contract by the defendant. Counsel for plaintiff contends that a contract of sale of a professional practice is not void as being in restraint of trade where the seller agrees not to practice his profession if the restriction in the agreement is reasonable as to the area that it covers, even though it is unlimited as to time and insists that the findings of the decree are sustained by the evidence.

The legal principles governing a case of this character were recently restated by our Supreme Court in Bauer v. Sawyer, 8 Ill.2d 351. There, the court said (p. 354): “The principles governing cases of this kind were stated in Ryan v. Hamilton, 205 Ill. 191, 197, in which a contract by a physician not to engage in practice in a specified community was enforced by injunction : ‘That contracts in general restraint of trade are generally held to be illegal is beyond controversy. But the rule admits of well defined exceptions and among the exceptions are contracts of the kind and character presented in this case. Contracts of this class, where the limitation as to territory is reasonable and there exists a legal consideration for the restraint, are valid and enforceable in equity and in such cases relief by injunction is customary and proper.’ (See also Storer v. Brock, 351 Ill. 643; Linn v. Sigsbee, 67 Ill. 75.) In determining whether a restraint is reasonable it is necessary to consider whether enforcement will be injurious to the public or cause undue hardship to the promisor, and whether the restraint imposed is greater than is necessary to protect the promisee. Hursen v. Gavin, 162 Ill. 377; Restatement of the Law, Contracts, secs. 515, 516.”

In the Baner case, the Supreme Court upheld an agreement whereby a doctor agreed not to practice his profession in the City of Kankakee and within a radius of twenty-five miles therefrom for a period of five years. The Supreme Court held in that case that no injury would result to the public on account of the restriction prohibiting Dr. Sawyer from practicing his profession in the City of Kankakee or twenty-five miles therefrom and that there was no apparent hardship to the doctor himself since the limitations of the agreement as to time and territory were reasonable.

The case of Storer v. Brock, 351 Ill. 643, reviews a number of cases wherein contracts alleged to be in restraint of trade were involved. In some of these cases, there was a restriction as to the length of time the contract was to run, while in others there was no restriction. The case of Linn v. Sigsbee, 67 Ill. 75, is one of the cases reviewed where there was no time limitation and the territory was limited to a radius of six miles. The contract involved was upheld as not being unreasonable, even though there was no time limitation. Ryan v. Hamilton, 205 Ill. 191, was another case involving physicians where one of the parties agreed not to practice medicine within eight miles of his present office for the life of one of the parties to the agreement, but was otherwise unlimited as to time. This contract was upheld as not being unreasonable. Storer v. Brock, 351 Ill. 643, was an action brought by Dr. Storer to recover from Dr. Brock a money judgment, which plaintiff claimed to be due him under a contract, by the provisions of which, plaintiff, a physician, sold his practice to the defendant, also a physician, for $7500, payable in installments. The contract further required Dr. Brock, the purchaser, to pay Dr. Storer (the vendor) $125 a month for two years and $100 a month during the remainder of Dr. Storer’s life. Dr. Storer, in consideration of these payments, agreed not to engage in the practice of medicine in the City of Chicago. Dr. Brock failed to make the monthly payments required by the contract and Dr. Storer filed suit. Dr. Brock sought to avoid the monthly payments on the ground that the contract was void as being in restraint of trade. The Supreme Court held otherwise and said (p. 648): “Dr. Brock contends that the restriction upon Dr. Storer in practicing his profession is unreasonable for two reasons: First, because it is unlimited in time; and second, because it is not sufficiently limited as to space or territory. The decision •in Linn v. Sigsbee, supra, is authority that the limitation is not unreasonable because it- may extend throughout the lifetime of Dr. Storer. In support of his contention that the restriction is unreasonable because unlimited in time, counsel for Dr. Brock cite Mandeville v. Harman, 42 N.J.Eq. 185, 7 Atl. 37, Rakestraw v. Lanier, 104 Ga. 188, 30 S.E. 735, and Freudenthal v. Espey, 45 Col. 488, 102 Pac. 280. "We do not deem it necessary to comment extensively on these cases. In the Freudenthal case the restriction was limited to five years and was held valid. In so far as the other two cases may be taken to hold that a restriction upon the right of a physician to practice his profession, when otherwise reasonable and valid, is void solely because not expressly limited in time, they are not only contrary to Linn v. Sigsbee, supra, but to the apparent weight of authority in this country as shown by the following cases: (citing cases).

“In support of their contention that the restriction in the contract in this case is unreasonable as to place or space since it applies to the whole city of Chicago, which has a population of more than 3,000,000, Dr. Brock’s counsel cite no case where a restriction upon the right of a person to engage in a profession, trade or business limited to a city, town or territory less than the whole State has been held unreasonable on such ground. . . . By the contract he (Dr. Storer) is not restrained from practicing Ms profession at any place in tMs State outside of the city of Chicago.”

The record, in the instant case, fails to disclose that there would be any hardship resulting to the public if the defendant were restrained from practicing law in Winnebago County and since the defendant is not prohibited from practicing law in any of the other counties in the State of Illinois, we do not believe there is any unjust hardship imposed upon him. If he desires to practice law in this state, there is nothing to prevent him from establishing a practice elsewhere than in Winnebago County, and under his contract with the plaintiff he is entitled to receive 32%% of the net profits from the plaintiff’s law business for seven years. The record shows that the defendant drafted this agreement, and he apparently felt it was fair and equitable at that time and that it did not impose any hardship upon him. We concur in his evaluation of the situation.

The defendant next contends that the performance of the contract entered into by him and the plaintiff requires them to engage in illegal and unethical practices and is contrary to the public policy of this state. The public policy of a state is found in its constitution, its statutes and the decisions of its courts. (Zeigler v. Illinois Trust and Savings Bank, 345 Ill. 180, 193.) No constitutional provision or statute or judicial decision has been called to our attention, nor have we found any which would make the contract in question illegal. It is not necessary for us to determine whether the contract violates some canon of professional ethics.

Finally, it is asserted that the plaintiff acquiesced in the breach of this contract by the defendant, and, also, that the plaintiff himself breached the contract prior to the time that the defendant breached the same and that plaintiff’s breach thereby excused performance of the contract by the defendant. The trial court made specific findings on these two points and found both of them against the defendant’s contentions. We have reviewed the evidence in this record on these matters and, in our opinion, the findings of the court are amply sustained by the evidence.

The decree of the Circuit Court of Winnebago County is affirmed.

Decree affirmed.

CROW and EOVALDI, JJ., concur.


author: PRESIDING JUSTICE EOVALDI

text:
    Vivian Fogelmark, Executrix of the Estate of Charles H. Fogelmark, Deceased, Plaintiff-Appellant, v. Western Casualty & Surety Co., Defendant-Appellee.
    Gen. No. 10,954.
    Second District.
    November 5, 1956.
    Released for publication November 23, 1956.

      Louis F. Knoblock, of Peoria, for appellant.
    Galbraith & Baymiller, of Peoria, for appellee.
   PRESIDING JUSTICE EOVALDI

delivered the opinion of the court.

This is an action at law brought by plaintiff to recover funeral expenses, within a policy limitation of one thousand ($1,000) dollars, under the “Medical Payments” clause of an automobile insurance policy issued by the defendant to plaintiff’s testate. On motion of defendant, supported by affidavit, the circuit court of Peoria County entered a Summary Judgment for defendant from which this appeal is taken.

The pleadings upon which the cause was determined consisted of the complaint, with a copy of the insurance policy appended; Answer of defendant; Defendant’s Motion for Summary Judgment, together with supporting affidavit; and affidavit of plaintiff in Opposition to Motion for Summary Judgment.

The plaintiff’s theory of the case is that the terms of the policy do not exclude defendant from liability for the reasonable funeral expenses of the deceased insured and that the trial court erred in construing the policy so as to deny plaintiff recovery for her loss.

It is defendant’s theory that the policy in question is clear and unambiguous; that plaintiff’s claim for funeral expenses is clearly and specifically excluded by reason of payments to her under the Workmen’s Compensation Law; and that the trial court committed no error in so finding.

The uncontroverted facts established by the pleadings upon which the Summary Judgment appealed from was based, show that on March 18, 1949 defendant executed and delivered to Charles H. Fogelmark a standard combined automobile insurance policy, the effective period of which was April 10, 1949 to April 10, 1950. One coverage declared by the policy was “C — Medical Payments,” for which the company’s liability was limited to “$1,000.00 each person.”

In Paragraph I of the section of the policy entitled “Insuring Agreements,” the company’s liability under Coverage C was agreed upon as follows:

“Coverage C — Medical Payments.

“To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, ambulance, hospital, professional nursing and funeral services, to or for each person who sustains bodily injury, sickness or disease, caused by accident, while in or upon, entering or alighting from the automobile if the automobile is being used by the named insured or with his permission.” (Italics ours.)

Another section of the policy, however, contains certain exclusions from the insuring agreements, one of which is as follows:

“This policy does not apply:

“(g) Under Coverage C to bodily injury to or sickness, disease or death of any person if benefits therefor are payable under any workmen’s compensation law.”

On March 18, 1950, during the effective period of said policy, the insured, Charles H. Fogelmark, was killed in an accident while riding in the automobile insured by the said policy. At the time of his death he was an employee of the West Disinfecting Company of Chicago and as such was under and subject to the provisions of the Workmen’s Compensation Laws of Illinois. Subsequently, West Disinfecting Company paid to plaintiff, as the surviving widow of the deceased insured, the compensation due her for the fatal injury of the deceased insured under the provisions of the said compensation laws.

After the death of Charles H. Fogelmark, and on August 9, 1950, plaintiff, Vivian Fogelmark, became the duly qualified and acting Executrix of the decedent’s estate. On August 24, 1951, after the defendant insurance company had refused to pay reasonable expense for funeral services, plaintiff commenced this action at law for their recovery in the amount of $1,000. In raising the issue of its liability under the facts and terms of the policy, by motion for Summary Judgment, the defendant insurance company adopted the theory that because benefits resulting from the death of Charles H. Fogelmark were payable and paid under the Workmen’s Compensation Law of the State of Illinois, Coverage C of the policy was, by the terms of paragraph (g) of the exclusions, excluded from the application of the policy.

The trial court ordered that defendant have judgment in bar of plaintiff’s cause of action, and that plaintiff take nothing by her suit and pay the costs of the proceeding.

In view of the factual circumstance that the plaintiff, as widow of the deceased insured, was paid death benefits under Illinois "Workmen’s Compensation Laws, tbe sole issue presented by this appeal is tbe construction to be given to tbe interrelated insuring and exclusionary clauses pertaining to “Coverage C,” tbe medical payments coverage. No decision bas been cited, either in tbis or in other jurisdictions, where tbe agreement to pay funeral expenses has been construed with reference to workmen’s compensation exclusions.

Tbe principles governing tbe construction of insurance policies have been long established through tbe opinions of tbe courts of review of tbis jurisdiction, and they may be applied to resolve tbe problem at band. In the recent case of Canadian Radium & Uranium Corp. v. Indemnity Ins. Co. of North America, 411 Ill. 325, at 332, tbe court said:

“Tbe construction to be given insurance contracts, like other contracts, should be a natural and reasonable one. ... If tbe language is clear, tbe terms are to be taken and understood according to their plain, ordinary and popular sense. . . . But because tbe insurer is tbe one who prepares tbe contract, ambiguous or equivocal expressions whereby tbe insurer seeks to limit its liability will be construed most strongly against tbe insurer.”

In tbe recent case of Wolf v. American Casualty Co. of Reading, Pa., 2 Ill.App.2d 124, where a different facet of tbe insuring clause here involved was under consideration, tbe court, at pp. 125-126, said:

“Plaintiff argues that tbe clause of tbe policy involved is ambiguous and should be construed most strongly against tbe insurance company. . . . Tbe rule relating to tbe construction of insurance policies bas been stated often. It is summarized in Mosby v. Mutual Life Ins. Co. of New York, 405 Ill. 599, 92 N.E.2d 103, as follows: ‘Ambiguous provisions or equivocal expressions whereby an insurer seeks to limit its liability will be construed most strongly against tbe insurer and liberally in favor of tbe insured. Lenkutis v. N. Y. Life Ins. Co., 374 Ill. 136, 28 N.E.2d 86.’ This is a sound rule. It recognizes the realities of the transaction, that is, that the provisions of an insurance policy are not the product of negotiations between insurer and insured but are written by the insurance company and out of necessity, perhaps, submitted for acceptance without change.”

In Feigenbaum v. Aetna Casualty and Surety Co., 240 Ill. App. 502, at page 507, the court had this to say:

“In construing a policy of insurance, the court should consider the instrument as a whole, and endeavor to ascertain the intention of the parties from the written words used, taking into account the situation of the parties, the nature of the subject matter with which they are dealing, and the purpose which the parties sought to accomplish. ... It is well settled: ‘Policies of insurance should be liberally construed in favor of the insured so as not to defeat, without a plain necessity, his claim for indemnity, which, in taking the insurance, it was his object to secure’. . . . ‘Where there is ambiguity in contracts of insurance; or where the meaning is uncertain, the construction should be most strictly against the Insurance Company, for the obvious reason, that insurance contracts are prepared by the insurer, and ambiguous words or terms will therefore be construed against the insurer.’ ”

The theory of defendant’s Motion for Summary Judgment in the lower court was that because workmen’s compensation benefits had been paid as a result of the death of the' insured, Coverage C was completely excluded from the policy. Such a position ignores the express language of the clauses involved. As was most recently stated in Scapes v. Orr, 2 Ill. App.2d 363, at 368: “The provisions of an insurance policy, like those of any other contract, are to be construed together.” In the instant case, the defendant agreed by Coverage C to pay all reasonable expenses “for necessary medical, surgical, ambulance, hospital, professional nursing and funeral services, to or for each person who sustains bodily injury, sickness or disease caused by accident.” Exclusion (g) provides that the policy does not apply under Coverage C “to bodily injury to or sickness, disease or death of any person if benefits therefor are payable under any workmen’s compensation law.” Beading the two clauses together, it is apparent that the defendant company has stated only that it will not pay reasonable expense for medical, surgical, ambulance, hospital, professional nursing and funeral services occasioned by bodily injury, sickness or disease of its insured, caused by accident, if benefits or compensation for such items of coverage are payable under any workmen’s compensation law. The obvious purpose is, of course, to prevent dual recovery for the same items of medical and hospital expense resulting from a single accident.

The Illinois Workmen’s Compensation Act, by the terms of Exclusion (g), has been incorporated into the policy. Both on the date the contract of insurance was entered into and on the date the insured met his death, Section 8 (a) of the Illinois Act (Ill. Rev. Stat., 1949, chap. 48, par. 145 (a)) provided that, in case of a nonfatal accident, compensation should be paid an employee for accidental injury as follows:

“(a) The employer shall provide the necessary first aid medical and surgical services, and all necessary medical, surgical and hospital services thereafter, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury. . . .”

By the terms of this Section, therefore, an injured employee who was also an insured of the defendant could recover compensation, (or benefits as defendant’s policy describes it), for all the items of coverage agreed upon in Coverage C of the said policy except for funeral expenses, which, of course, would not result from a non-fatal accident. Had the plaintiff or her testate been paid compensation under the provisions of Section 8 (a) as a result of his accident, it is apparent that the terms of Exclusion (g) would preclude further recovery for the medical, surgical, and hospital expenses, enumerated in Coverage C, which arose out of the accident for which compensation was paid. There were, however, no benefits paid as a result of the insured’s accident under this Section of the "Workmen’s Compensation Act and there remains only the question of whether benefits or compensation for the funeral services of Charles H. Fogelmark, as a deceased employee, were in fact payable or paid under the Workmen’s Compensation Act.

The compensation which is to be paid to the widow of an employee whose accidental injury results in death is controlled by Section 7 (a) of the Act (Ill. Rev. Stat. 1949, chap. 48, par. 144 (a)). It was under this section, then, that plaintiff, the widow of the insured, received the benefits to which defendant refers in its affidavit given in support of the Motion for Summary Judgment. Insofar as pertinent, the provisions of Section 7 (a) are as follows:

“7. The amount of compensation which shall be paid for an accidental injury to the employee resulting in death shall be:

“(a) If the employee leaves any widow, child or children whom he was under legal obligations to support at the time of his accident, a sum equal to four times the average annual earnings of the employee, but not less in any event than two thousand five hundred dollars and not more in any event than four thousand dollars.

“Any compensation payments other than necessary medical, surgical or hospital fees or services shall be deducted in ascertaining the amount payable on death.”

There is nothing in the language of the foregoing section which provides that compensation shall be payable for the funeral services of a deceased employee. While it is true that the Act makes provision for the payment of five hundred dollars for burial expenses under pp. 144, 7 (e), this benefit does not apply here because that sub-paragraph of the statute specifically limits burial expenses to cases where no amount is payable under par. 7 (a) (b) (c) or (d). No provision in any other section of the Act for the payment of funeral benefits to the widow of a deceased employee has been cited by either party. Defendant takes the position that if a benefit of any nature is paid under a workmen’s compensation law, it is relieved of any and all liability under Coverage C. Such a result can be reached only by isolating the language of the exclusionary clause from that of the insuring clause. The settled rule of construction, is, however, that all clauses of an insurance policy must be read together. In the case of Welborn v. Illinois Nat. Casualty Co., 347 Ill. App. 65, the court was called upon to construe a general exclusion provision which appeared to be in direct conflict with the agreed coverages and, in finding for the insured, applied the rule stated as follows, p. 68.

“Second, the same authorities, and many others, assert the general contract rule of construction that the court should determine the intention from the whole agreement, and endeavor to give a meaning to all provisions, so far as possible, which will render them consistent and operative.”

Reading Coverage C and Exclusion (g) of the present policy together, it is manifest that by the former the company agreed to pay reasonable expenses for necessary medical, surgical, ambulance, hospital, professional nursing and funeral services, and that by the exclusion, if any of the items of expense so listed were payable under any workmen’s compensation law, Coverage C would not apply as to such items. Benefits for funeral expenses were neither payable nor paid under the Illinois compensation law. The agreement of the defendant to pay reasonable funeral expenses thus remained operative. Such a construction gives sensible meaning to both provisions of the policy, i. e., by the insuring clause the insured is protected against medical expenses expected to attend accidental injury or death; by the exclusionary clause the company is protected from liability for such items of the agreed coverage as may be recovered by the insured under workmen’s compensation laws.

Ambiguous provisions or equivocal expressions in an insurance policy, whereby an insurer seeks to limit its liability, will be construed most strongly against the insurer and liberally in favor of the insured. Mosby v. Mutual Life Ins. Co. of N. Y., 405 Ill. 599; Lentin v. Continental Assur. Co., 412 Ill. 158. In the early case of Travelers’ Ins. Co. v. Dunlap, 160 Ill. 642, at 647, the court said:

“It would not be difficult for the insurer to use language which, in respect to the question here under consideration, would be free from doubt. A policy of insurance should not be so framed as to be susceptible of one construction in the hands of the soliciting agent, and of quite a different one in the hands of the adjuster.”

In Lenkutis v. N. Y. Life Ins. Co., 374 Ill. 136, at 145, the court quotes the following with approval:

“ ‘Contracts of insurance should not be construed through the magnifying eye of a technical lawyer, but rather from the standpoint of what an ordinary man would believe the contract to mean. The insurance company wrote this contract.’”

For the error of the trial court in entering judgment in favor of defendant, the judgment is reversed and the cause remanded for a new trial with directions to proceed to a determination of the amount of funeral expenses reasonably expended on behalf of the insured.

Reversed and remanded with directions.

DOVE, P. J. and CROW, J., concur.


author: JUSTICE EOVALDI

text:
    Community Unit School Dist. No. 1 of Marshall, LaSalle and Livingston Counties, Ill., et al., Plaintiffs-Appellants, v. County Board of School Trustees of Woodford County, Ill., County Board of School Trustees of Marshall County, Ill., Community Unit School Dist. No. 108 of Woodford, LaSalle, Marshall and Livingston Counties, Illinois, et al., Defendants-Appellees.
    Gen. No. 10,975.
    Second District.
    November 5, 1956.
    Released for publication November 23, 1956.

      Berry & O’Conor, of Streator, for plaintiffs-appellants.
    Isadore I. Leiken, of Minonk, for defendantsappellees.
   JUSTICE EOVALDI

delivered the opinion of the eonrt.

This is an appeal from an order of the Circuit Court entered on February 16, 1956, in a suit brought under the Administrative Review Act. The proceeding was commenced as a petition filed with the County Board of School Trustees of Woodford County, Illinois, and the County Board of School Trustees of Marshall County, Illinois, for the detachment of 850 acres of land from Community Unit School District No. 108 (hereinafter referred to as the Minonk School District) and the annexation of that land to Community Unit School District No. 1 (hereinafter referred to as the "Wenona School District). The County Board of School Trustees of Woodford County, and the County Board of School Trustees of Marshall County, each denied the petition. A change of boundaries required the concurrent action of both Boards of School Trustees. The Petitioner, Wenona School District, and certain of the residents of the Wenona School District territory, filed suit for review in the Circuit Court of Woodford County. That court on February 16, 1956 entered an order affirming the decisions of the County Boards of School Trustees denying the change of boundaries.

Plaintiffs’ theory of the case is that the petition was signed and presented to the County Boards of School Trustees by Melvin H. Matter, Phyllis Matter, Raymond Matter, Rosena Matter, Herman Matter, John J. Loftus and Anna G. Barclay, being all of the legal voters residing in the territory involved; that all legal requirements for the petition were complied with and the record contained no evidence that would justify the County Boards of School Trustees in denying the boundary change; that plaintiffs made out a prima facie case by showing that the petitioners were all of the legal voters in the territory; that the territory was contiguous to the Wenona School District, and that they requested the change of boundaries; that defendants presented no evidence which would constitute a reason for denying the petition; and that consequently the decisions of the County Boards of School Trustees, and the order of the Circuit Court of Woodford County affirming same, were not based on any substantial evidence in the record, and were manifestly against the weight of the evidence.

The theory of the defendants-appellees is that the orders of the County Boards of School Trustees were in all respects in accordance with the law and the facts; that there had been a full and complete compliance with the provisions of par. 4B — 4, chap. 122, Ill. Rev. Stat., 1955; that the orders of said County Boards of School Trustees were not arbitrary, were not unreasonable, and were not against the manifest weight of the evidence and said orders were properly affirmed by the Circuit Court.

Article 4B-5 of the School Code (Ill. Rev. Stat., 1955, Chap. 122, par. 4B — 5) provides for review of decisions of the County Boards of School Trustees in accordance with the provisions of the “Administrative Review Act,” and provides further that “the decision of the county board of school trustees shall be deemed an ‘administrative decision’ as defined in Section 1 of the ‘Administrative ' Review Act’ ”, (Ill. Rev. Stat. 1955, Chap. 110, pars. 264 et seq.), the latter act providing (par. 274, sec. 11, Scope of review) as follows:

“The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.”

The changing of boundaries of a school district is a legislative act, and in performing this function the county board of school trustees is acting as an agent of the legislature. Sec. 1, Article VIII, Constitution of Illinois, 1870; Chap. 122, pars. 4B — 1 et seq., Ill. Rev. Stat. 1955; People v. Deatherage, 401 Ill. 25; Husser v. Fouth, 386 Ill. 188. The findings of an administrative agency are deemed to be prima facie correct and the court is not authorized or privileged to substitute its judgment for that of the agency unless the findings of the agency are not supported by substantial evidence. Produce Terminal Co. v. Commerce Com. ex rel. Peoples Gas Light & Coke Co., 414 Ill. 582; Dept. of Public Works v. Lewis, 411 Ill. 242; Mohler v. Department of Labor, 409 Ill. 79; People ex rel. Loughry v. Board of Education of Chicago, 342 Ill. App. 610; Stehl v. County Board of School Trustees, 7 Ill.App.2d 257; Kinney v. County Board of School Trustees, 7 Ill.App.2d 286. This is particularly true where the administrative body is vested with discretion in making a determination. Smith v. Board of Education, 405 Ill. 143; People ex rel. Loughry v. Board of Education, supra.

Par. 4B-4 of the School Code, provides that the county board of school trustees shall hear evidence as to the school needs and conditions of the territory in the area within and adjacent thereto and as to the ability of the districts affected to meet the standards of recognition as prescribed by the Superintendent of Public Instruction, and shall take into consideration the division of funds and assets which will result from the change of boundaries and shall determine whether it is to the best interests of the schools of the area and the educational welfare of the pupils that such change in boundaries be granted. More than personal desires or convenience is needed to warrant a change in established school districts boundaries, and the welfare of affected districts and pupils as a whole must control. Trico Community, etc. v. County Board, etc., 8 Ill.App. 2d 494.

There are no children of school age residing within the area — the 850 acres of land sought to be detached. Considerable litigation has been had, and Petitions filed, and elections held, concerning portions of the area involved in this appeal. This territory has an assessed valuation of $185,850. A part of the land, consisting of 160 acres referred to as the Matter farm, had previously been annexed to the Minonk School District on September 26, 1950 on a petition filed by Melvin Matter, Rosena Matter and Herman Matter so that a daughter then in school could attend the Minonk High School. Those petitioners are three of the seven signers of the petition herein and are all plaintiffs in this canse.

The remainder of the territory involved in this petition, except for a short period of time, had previously been a part of the Rutland, Illinois, Grade and High School Districts. Rutland is located approximately half way between Minonk and Wenona on U. S. Route 51. The territory in question extends a mile and one-half north and south, and a mile east and west. The northwest corner of the territory is one mile east and a half mile north of the Village of Rutland. The southern boundary of the territory is one mile south and one and a half miles east of the Village of Rutland. The center of the territory involved therein is substantially the same distance from Minonk and Wenona and is one and a half miles from Rutland.

In the early Spring of 1955 the Rutland Grade and High School Districts were annexed to the Wenona School District and in June of the same year a portion of the territory so annexed in the Spring was detached from Wenona School District and annexed to the Minonk School District. The territory so detached from Wenona and annexed to Minonk, including the land in question except the Matter farm, had an assessed valuation of about 60% of the total valuation of the former Rutland Grade and High School Districts and the territory contained 88% of the student population of the former Rutland Grade and High School Districts.

The Minonk Unit District operates a grade school in Rutland, which serves the grade school students in that area and is available for any students living in the area sought to be detached. There were in the original Rutland School Districts, 105 elementary students and 25 high school students. In that part of the former Rutland School Districts which were annexed to Minonk in June of 1955, there are 93 elementary school students and 22 high school students. The above facts and statistics were presented in evidence before the County Boards of School Trustees of Woodford and Marshall Counties.

Evidence was also presented by the defendants as to the per capita cost of operating the Rutland School and the effect of the proposed detachment on such costs. Defendants also presented evidence showing that historically the territory in question supported the Rutland Schools, and that the Rutland Grade School served this area with approximately 100 children enrollment and still needed the support of this territory.

No evidence was presented by appellants before the County Boards of School Trustees, as to the educational welfare of any pupils who might later reside in this area. Appellants admit that Minonk operates a grade school and there is little difference in educational advantages between the two schools. Several witnesses testified in behalf of the parties at the hearings before the County Boards of School Trustees, and present counsel for the appellants appeared in their behalf at such hearings.

The orders entered by the County Boards of School Trustees of both Woodford and Marshall Counties recites as follows:

“And the County Board of School Trustees, having heard evidence as to the school needs and conditions of the districts affected by the proposed boundary changes; and as to the ability of these districts affected to meet the standards of recognition as prescribed by the Superintendent of Public Instruction; and having taken into consideration whether it is to the best interests of the schools of the districts and the educational welfare of the pupils that such changes in boundaries be granted; . . . “It is therefore, ordered decreed that the. petition be and it is hereby denied.”

On the facts appearing in this case, we cannot say that the decisions of the County Boards of School Trustees of Woodford and Marshall Counties are against the manifest weight of the evidence. The findings and decisions of those bodies in denying the petitions are supported by the evidence and are within the authority of said boards. They should not, therefore, be disturbed by this court.

The judgment of the Circuit Court in affirming the decisions of the County Boards of School Trustees is affirmed.

Judgment affirmed.

DOVE, P. J. and CBOW, J., concur.


author: PRESIDING JUSTICE SCHEINEMAN

text:
    Arleine Hambley, et al., Plaintiffs-Appellants, v. Charles W. Conroy, et al., Defendants-Appellees.
    Term No. 56-O-6.
    Fourth District.
    November 5, 1956.
    Released for publication November 21, 1956.

      Irving M. Wiseman, of Alton, and Mudge and Mndge, of Edwardsville, for plaintiffs-appellants.
    Jones, Ottesen & Fleming, of Belleville, and Baker, Kagy & Wagner, of East St. Louis, for defendantsappellees.
   PRESIDING JUSTICE SCHEINEMAN

delivered the opinion of the court.

A motion to dismiss this appeal has been filed by appellees and appellants have filed objections thereto. The undisputed facts are that this appeal is from a judgment of the Circuit Court January 12, 1956. Notice of appeal was filed March 12, 1956. On April 30, 1956, being one day before the expiration of the fifty days for filing a report of proceedings, the appellants filed a motion for extension of time, and on the same day the court entered an order extending the time to June 11, 1956.

The report of proceedings was not filed within the prescribed time nor was any motion for further extension filed within that period. However, a motion for further extension was filed in the trial court on June 12, 1956, and an order was entered on that date purporting to grant further extension of time.

The court was without power to extend the time for filing a report of proceedings upon the application made after the time had already expired. Lukas v. Lukas, 381 Ill. 429. The rule specifically requires that an application for such extension must be made “before the expiration of the original or extended period.” App. Ct. Rule 1(c); Sup. Ct. Rule 36 (1) (c) [Ill. Rev. Stats. 1955, ch. 110, § 101.36, subd. (1)(c)].

The same limitation is applied in the court of review as to the time when application for extension may be made. However, there is no limit on the number or duration of extensions granted in the reviewing court. Thus, if the failure to procure a report of proceedings within the aggregate of 95 days allowed in the trial court is caused by the activity or fault of the official reporter, a showing of such facts will justify any extension of time the reviewing court finds reasonably necessary. But application for the extension must be filed before the time has expired.

' Appellants argue that the rule should not apply where the time between expiration date and the new application was short. Adoption of such a view in one case would permit the same argument as to a later date in another case. The rule must be applied or it is abolished. It follows that the court’s power to grant extensions terminates on the last day specified by the rule, if no application is presented by that time, and subsequent action is ineffective regardless of the date thereof. The cited case of Lukas v. Lukas, 381 Ill. 429, further indicates that, if the report of proceedings is not filed in the required time, and it is essential for review of the alleged errors, the appropriate action of the reviewing court is to affirm the judgment rather than dismiss the appeal.

The report of proceedings not having been filed in the trial court within the time allowed, ór within any extension of that time on application made within the time, it cannot be considered in this case and the report of proceedings being necessary to a consideration of the errors relied upon by appellants, in the absence of such report there are no questions presented by the record which may be reviewed by this court. Accordingly the judgment of the Circuit Court is affirmed.

Judgment affirmed.

BARDENS and CULBERTSON, JJ., concur.


text:
    J. V. Williamson and Mildred Williamson, Plaintiffs-Appellees, v. F. E. Williamson and Edna Williamson, Defendants-Appellants.
    Term No. 56-O-1.
    Fourth'District.
    November 5, 1956.
    Released for publication November 21, 1956.
    D. A. McGrady, of Gillespie, for defendant Edna "Williamson.
    Cox, Smith & Bassett, for appellees.
   PRESIDING JUSTICE SCHEINEMAN

delivered the opinion of the court.

This is an appeal from a final decree entered in the circuit court January 13, 1956. Notice of appeal was filed January 30, 1956, so that the report of proceedings was required to be procured and filed in the trial court on or before March 20, 1956, in.accordance with the rule which fixes an original period of 50 days for this purpose. App. Ct. Rule 1; Sup. Ct. Rule 36 [Ill. Rev. Stats. 1955, ch. 110, §101.36].

That rule also authorizes the trial court, upon hpplication filed within the 50 days, to grant an extension, or extensions, but the aggregate of extensions shall not exceed an additional 45 days.

Since the notice of appeal was filed January 30, the trial court had no authority to extend the time for filing the report of proceedings^ beyond May 4th. The court entered an order purporting to extend the time for filing the report of proceedings te May 7, 1956. The report of proceedings was not filéd prior to the 7th of May, and in fact, was never filed in the trial court at any time, but was delivered to the clerk of this court on May 7th.

This court could have extended the time, to file a report of proceedings later than .May 4th,- but only on application filed with the clerk on or before May 4th.

The orders of the trial court purporting to extend the time to file the report of proceedings- beyond May 4, 1956, are void, and- of no effect. ' The report of proceedings should have been filed in the trial court prior to May 4, 1956. Sih’ce this was' hot done it is not available before this court. Lukas v. Lukas, 381 Ill. 429.

This court further finds.that ,a report of proceedings is necessary to a consideration of the errors relied upon by appellant and in the absence of such report there are no questions presenfed' by 'the record for. review in this court. The appropriate order is to affirm the judgment or decree appealed from. Lukas v. Lukas, 381 Ill. 429. Accordingly the decree of the circuit court is affirmed.

Decree Affirmed.

BARDENS and CULBERTSON, JJ., concur.


author: PEE CUEIAM.

text:
    Albert R. Cosgrove, Plaintiff-Appellant, v. New York, Chicago & St. Louis Ry. Co., Defendant-Appellee.
    Term No. 56-O-4.
    Fourth District.
    November 5, 1956.
    Released for publication November 21, 1956.
    Zeno Middleton, of East St. Louis, for plaintiff-appellant.
    Pope and Driemeyer, of East St. Louis, for defendant-appellee ; Frank M. Rain, of East St. Louis, of counsel.
   PEE CUEIAM.

The defendant herein filed a motion to dismiss this appeal for failure of appellant to comply with the rules of court. Prior to filing the briefs this motion was presented to a judge of this court in vacation who relied upon the representations of appellant’s counsel set forth in his objections, and thereupon denied the motion.

Upon final hearing in this court, the actual procedure that was followed has been shown to this court from the official records. It is shown therein that the trial court dismissed the complaint on motion and entered final judgment for defendant on December 21, 1955. Plaintiffs filed notice of appeal therefrom on January 11, 1956.

The plaintiffs had until March 12, 1956, to file the record on appeal in this court by reason of the 60 day rule. App. Ct.Rule 1 (2) (d); Sup. Ct. Rule 36. Section (e) [Ill. Rev. Stats. 1955, ch. 110, § 101.36 subd. (2) (e)] of this rule further provides for granting additional time by the reviewing court or a judge thereof during vacation. No authority is conferred upon the trial court or judge thereof to extend the time for filing the record on appeal in any reviewing court. There is a provision granting to the trial judge authority to extend the time for filing a report of proceedings not more than 45 days. If such an extension is granted, the rule further provides (Par. d) that the time for filing the record on appeal is automatically extended 10 days beyond the extended time for filing the report of proceedings.

Appellant’s objections to the dismissal of this appeal represented that a trial judge had granted 30 days’ extension of time to file the report of proceedings and that a report of proceedings had been filed within the extended period. These representations were the basis for the vacation order denying the motion to dismiss the appeal.

Apparently appellant’s counsel misunderstood the provisions of the rule, for this court now finds that the praecipe for record filed by appellant did not call for the inclusion; of a report of proceedings, since the ca!se was dismissed: on motion attacking the complaint, without hearing on evidence.

We further find, that no order has been en tered by a trial judge for extension of time to file a report of, proceedings,- and no such report has ever been filed. The-record does disclose an order entered in the circuit court on February 29, 1956, purporting to -grant 30 days’.-extension of time to file the record on appeal in, this, court; i-As previously noted, the trial court has no authority to grant such an extension, and the order is void. McDonald v. McDonald, 351 Ill. App. 432.

- The record -on,appeal was filed in this court on April 5,| :1956,. although the time to file it had expired March 12, 1956. It was filed too late and the appeal must -be dismissed-.- Supreme Court Rule 36 (2) (g) provides.; “The reviewing court shall dismiss th¡e-appeal if the record on, appeal is not filed in proper tinae.” To similar effect is App. Ct. Rule 1 (2) (g).

-It is therefore ordered that the order in vacation denying the motion to dismiss this appeal is set aside, as,having been entered upon mistake, of fact, and this appeal is- dismissed.

Appeal dismissed.


author: JUDGE McCORMICK.

text:
    Edna G. Marsh, Appellee, v. John M. Chesney, and William Lord Hodes, Defendants. Appeal of William Lord Hodes, Appellant.
    Gen. No. 46,836.
    First District, Second Division.
    September 25, 1956.
    Released for publication November 27, 1956.
    John J. Maeiejewski, for William L. Hodes, defendant-appellant; Charles D. Snewind, of counsel; James A. Dooley, for appellee.
   Opinion by

JUDGE McCORMICK.

Not to be published in full.


author: PRESIDING JUSTICE EEINBERG.

text:
    David Crowley, Appellee, v. John D. Sidey, Appellant.
    Gen. No. 46,901.
    First District, Third Division.
    October 17, 1956.
    Released for publication November 28, 1956.

      Van Duzer, Gershon, Quinlan & Jordan, for appellant; Irving N. Stenn, for appellee; Charles M. Loverde, of counsel.
   Opinion by

PRESIDING JUSTICE EEINBERG.

Not to be published in full.


author: JUDGE LEWE.

text:
    August J. DeWulf, Plaintiff, and B. Brotine, Assignee-Appellant, v. Hyman Weinstock, Appellee.
    Gen. No. 46,845.
    First District, Third Division.
    October 17, 1956.
    Released for publication November 28, 1956.
    Aaron Soble, for appellant; En.dler, Harris & Butler, and Grossman & Grossman, for appellee; Samuel Grossman, and Lester N. Gross-man, of counsel.
   Opinion by

JUDGE LEWE.

Not to be published in full.


text:
    People of State of Illinois, Defendant in Error, v. Carl M. Snively, and Walter C. Adams, Plaintiffs in Error.
    Gen. No. 46,931.
    First District, Third Division.
    October 17, 1956.
    Released for publication November 28, 1956.
    E. A. Simmons, for plaintiffs in error; John Gutkneeht, State’s Attorney, of Cook county, for defendant in error; Charles D. Snewind, Francis X. Riley, and William Sylvester White, Assistant State’s Attorneys, of counsel.
   Opinion by

JUDGE LEWE.

Not to be published in full.


author: PRESIDING JUSTICE DOVE.

text:
    Community Unit School Dist. No. 1 of Marshall, LaSalle and Livingston Counties, et al., Plaintiffs-Appellants, v. County Board of School Trustees of Woodford County, et al., Defendants-Appellees.
    Gen. No. 10,976.
    Second District.
    November 5, 1956.
    Released for publication November 23, 1956.

      Berry & O’Conor, for plaintiffs-appellants; Isadore I. Leiken, for defendants-appellees.
   Opinion by

PRESIDING JUSTICE DOVE.

Not to be published in full.


author: JUSTICE EOVALDI.

text:
    Mattie McCary, Plaintiff-Appellee, v. John Wilson, Defendant-Appellant.
    Gen. No. 10,992.
    Second District.
    November 5, 1956.
    Released for publication November 23, 1956.
    Maynard & Maynard, for defendant-appellant; James F. Maynard, of counsel; Erland O. Nelson, for appellee.
   Opinion by

JUSTICE EOVALDI.

Not to be published in full.


text:
    Samuel Powel, Dorothy S. Powel, John H. Powel, Ann E. Powel d/b/a Powel & Powel, Harry F. Espenscheid and Dorothy S. Espenscheid, Appellees, v. R. B. Kintop, Appellant.
    Gen. No. 10,966.
    Second District.
    November 7, 1956.
    Released for publication November 24, 1956.
    Knight, Ingrassia & Bourland, for appellees; Pedderson, Menzimer & Conde, for appellant.
   Opinion by

PRESIDING JUSTICE DOVE.

Not to be published in full.


author: MR. JUSTICE BURKE LYONS, P. J.,

text:
    Joan Domke, Plaintiff-Appellant, v. Ethel McCue, Individually, and as Executor of the Will of Agnes S. Graser, Deceased, Dorothy Gerding and Dorothy Sullivan, as Executor of the Will of James H. Sullivan, Deceased, Peter J. Sullivan, et al., Defendants-Appellees.
    Gen. No. 52,128.
    First District, Second Division.
    October 15, 1968.
    Amended on Rehearing April 29, 1969.

      LYONS, P. J., dissenting.
    Ehrlich, Bundesen & Cohn, of Chicago (Russell Bundesen, of counsel), for appellant.
    McKinley, Price & Fako, for Ethel McCue, Werner H. Sommers, for Dorothy Sullivan, Wilson & McIlvane, for Dorothy Gerding, and Gregory A. Gelderman, all of Chicago, for Peter J. Sullivan, Marie S. Dunne, Isabell Stephens, Virginia DeTauble, Adele Sullivan and Genevieve Sullivan, appellees. (Paul E. Price, of counsel.)
   ON REHEARING

MR. JUSTICE BURKE

This appeal is taken from a judgment entered against plaintiff, Joan Domke, on her complaint for the construction of a will.

Testatrix, Agnes S. Graser, died on September 13, 1964, and her will was admitted to probate on October 22, 1964. The pertinent paragraphs of the will read as follows:

“THIRTEENTH: I give and bequeath unto ROSE SULLIVAN, a widow of DR. F. J. SULLIVAN, deceased, now residing [sic] at 4501 North Malden Street, Chicago, Illinois, if living at the time of my death, the sum of FIVE THOUSAND DOLLARS ($5,000.00). In the event of the death of MRS. ROSE SULLIVAN prior to my decease, then and in such event, I give and bequeath unto her daughter, MRS. HERBERT (JOAN S.) DOMKE, now residing c/o Kane Hospital, Pittsburgh 16, Pennsylvania, if living at the time of my death the sum of ONE THOUSAND DOLLARS ($1,000.00).
“NINETEENTH: In the event of insufficiency of the assets contained within my estate to pay in full the legacies mentioned in articles first to sixteenth, inclusive, then and in such event, the legacies enumerated in the preceding two paragraphs shall lapse and legacies in paragraph [sic] three to fifteen inclusive shall be abated pro rata.
“TWENTIETH: All of the rest, residue and remainder of my estate, real, personal or mixed, or [sic] which I may die, [sic] seized or possessed or in any wise entitled to, I give unto ANDREW W. SULLIVAN, now residing at Buena Park Hotel, 4145 Broadway, Chicago, Illinois, if living, otherwise to be distributed equally among my nieces and nephews as enumerated in Paragraphs 1 to 13 or the survivors thereof.” (Emphasis supplied.)

Andrew W. Sullivan, testatrix’s brother and only living collateral relative at the time the will was executed, predeceased testatrix and, pursuant to paragraph 20 of the will, the residual estate was to be shared equally by her “nieces and nephews as enumerated in Paragraphs 1 to 13” of the will.

On July 8, 1965, Jean Sullivan, et al., heirs of George Sullivan (who was one of the legatees named in the will and who predeceased the testatrix), filed a complaint to construe the will. Plaintiff entered her appearance in those proceedings, but filed no pleadings nor took any action to establish herself as a residuary legatee or otherwise assert a claim in the estate. Motions to dismiss the Sullivan will construction proceedings were filed by several of the defendants therein; the motions were sustained by the trial court on March 30,1966.

The executor of the estate elected to construe paragraph 20 of the will to exclude paragraph 13, thereby excluding plaintiff, a niece of the testatrix, from participation in the residual estate. This was reflected in the executor’s final account which was filed on August 16, 1966. Apparently on the same day plaintiff filed objections to the final account, contending that the wording of paragraph 20 includes paragraph 13, thereby entitling her to a share in the residual estate. Some of the defendants herein filed answers, together with an affidavit and exhibits, to plaintiff’s objections and plaintiff filed a reply thereto.

On October 7, 1966, plaintiff commenced this proceeding for the construction of the will. Her complaint was dismissed on motion of the defendants, the judgment stating in part that “the words ‘paragraphs 1 to 13’ set forth in Paragraph 20 of the will exclude the plaintiff Joan Domke as a beneficiary of the residuary estate of the testatrix, in light of all the language of the entire will.” It was further held that defendants’ claim of res judicata and laches on plaintiff’s part was without merit. From this judgment plaintiff prosecutes this appeal.

Plaintiff maintains that the word “to” in the phrase “Paragraphs 1 to 13” in paragraph 20 of the will is to be construed as a word of inclusion in keeping with the intention of the testatrix to benefit all her nieces and nephews as manifest by the provisions in the will, and that the trial court erred in construing the word as one of exclusion.

Courts are without power, under the guise of interpretation, to alter a testator’s will or to make a new will for him. Vollmer v. McGowan, 409 Ill 306, 99 NE 2d 337. In every will construction case, the question for the court is “not what the testator meant to say, but what he meant by what he did say.” Hull v. Adams, 399 Ill 347, 352, 77 NE2d 706. In Turek v. Mahoney, 407 Ill 476, 95 NE2d 330, the court stated at pages 481 and 482.

“The intention of a testator is to be ascertained in two ways, either from the words employed by him, to which all rules of construction give way, or by finding his presumed intention gathered by the application of rules of construction applicable to all cases where the meaning is obscure, doubtful or uncertain.”

It is apparent that when the testatrix wanted a paragraph to be included within a specific grouping of paragraphs, she employed language rendering it unmistakably clear that such was her intention. Thus, in paragraph 19 she provides that in the event there should be an insufficiency of assets in the estate to cover the legacies set out in paragraphs “first to sixteenth, inclusive,” those legacies provided for in “the preceding two paragraphs,” i. e., 17 and 18, were to lapse and the legacies provided for in paragraphs “three to fifteen inclusive” were to be abated pro rata.

It is also apparent from an analysis of the entire will that the testatrix had a very exact understanding of her will, its structure and its contents. Paragraph 1 provides that all taxes due by reason of the testatrix’s death shall be paid out of the residual of her estate. Paragraphs 2 through 15 contain specific legacies to relatives of the testatrix. Paragraph 2 provides that a stated sum of money go to one of testatrix’s nieces to be used for the benefit of testatrix’s brother, Andrew, who was her only living collateral relative at the time the will was executed and who was also the primary residual beneficiary named in paragraph 20. Further, of those legacies designated by testatrix to lapse or to abate pro rata in the event of insufficient funds, the legacy in paragraph 2 for Andrew’s benefit was not one.

Only those legacies to the more distant relatives and to nonfamily beneficiaries were to lapse or to abate pro rata. The legacies in paragraphs 17 and 18, which were designated to lapse in the event of insufficient funds, were specific legacies to a doctor and to a charity, non-family beneficiaries. The legacies in paragraphs 3 through 15, which were to abate pro rata in the event of insufficient funds, were specific legacies to the more distant relatives of testatrix. It should also be pointed out that the only other devise which was not designated to abate pro rata or to lapse for lack of assets in the estate, as the bequest in paragraph 2 for the benefit of Andrew, is contained in paragraph 16 which provides for a specific bequest of money for Masses to be said over a period of years for the repose of testatrix’s soul. It is therefore clear that testatrix had a complete understanding of the structure and contents of her will, and that what she did and what she said was what she meant to do and say.

In paragraph 20, testatrix provides that her residual estate be distributed “equally among my nieces and nephews as enumerated in Paragraphs 1 to 13” of the will. In forbearing to employ the word “inclusive” in reference to those paragraphs, she intended a different meaning to be ascribed to that phrase than when she employed the word “inclusive” twice in the preceding paragraph 19. When she said “Paragraphs 1 to 13” she meant what she said.

In 95 CJS, Wills, § 611, page 815, it is stated:

“Use of different words in the will applying to the same subject matter indicates or raises a strong presumption that the testator had in view different results, especially where associated with a qualifying expression in one part of the will that is omitted in the other.”

See also Edgar County Children’s Home v. Beltranena, 402 Ill 385, 84 NE2d 363.

We are in agreement with defendants’ position that to construe the word “to” to mean “inclusive” would do violence not only to the intention of the testatrix, but also to the generally accepted rules of construction. 86 CJS, page 909, defines the word “to” as a word of “exclusion, unless, by necessary implication, it is manifestly used in a different sense.” Our courts of review have uniformly adhered to such construction. See Stearns v. Sweet, 78 Ill 446; Clark v. Ewing, 87 Ill 344; Martin v. New York, C. & St. L. R. Co., 346 Ill App 467, 105 NE2d 122. Plaintiff contends that the decedent desired to treat all of her nieces and nephews with substantial equality and that to bar plaintiff from participation in the residuary estate is patently in disregard of the plan of distribution reflected by the will. However, testatrix placed plaintiff in a separate category from the other nieces and nephews in that plaintiff, under paragraph 13 of the will, is the only niece or nephew to whom a contingent but no specific bequest was made. Plaintiff also contends testatrix intended a class gift to her nieces and nephews under the residual clause, but testatrix limited the beneficiaries thereunder to those “enumerated in Paragraphs 1 to 13.”

Plaintiff’s claim of the denial of the right to show by extrinsic evidence that the word “to” is a word of inclusion is asserted for the first time in this Court. No extrinsic evidence was pleaded or offered which would support plaintiff’s contention that the word “to” was intended by the testatrix to be a word of inclusion. When the court sustained defendants’ motion to dismiss, plaintiff did not seek to file an amended complaint in which she might have set forth facts in support of her theory, that the evidence would reflect that a different meaning should be ascribed to the word “to” as used in the will, other than its obvious connotation. See Benson v. Isaacs, 22 Ill2d 606, 177 NE2d 209; In re Estate of Leichtenberg, 7 Ill2d 545, 131 NE2d 487. See also Jackman v. Kasper, 393 Ill 496, 516, 66 NE2d 678.

The view we take of the testatrix’s will renders it unnecessary to consider the matters raised by defendants with respect to res judicata and laches.

For these reasons the judgment is affirmed.

Judgment affirmed.

McNAMARA, J., concurs.

LYONS, P. J.,

dissenting:

I cannot concur in the result reached by the majority. At the outset, the defendants argue that plaintiff and/or plaintiff’s attorney were guilty of laches, in that plaintiff failed to assert her claim until after the filing of the final account, even though she had full knowledge of the position asserted by the executor and other heirs. Plaintiff argues that the court reached the right conclusion in denying defendants’ contentions that laches barred plaintiff’s claim.

I agree with plaintiff. The order appealed from specifically found against the defendants on the issue of laches. It is true, as defendants point out, that one, where the ruling of the trial court is correct it is of no consequence that the reason assigned may be incorrect and two, that a judgment may be sustained by any argument and by any basis appearing in the record which demonstrates that the judgment is correct. There is, however, ample evidence in the record to support the finding of no laches by the lower court. Plaintiff’s counsel filed an affidavit which stated that affiant was never informed by any party that it was the intention of the testator to exclude Joan Domke; that neither he nor his client was ever furnished a copy of the Illinois Inheritance Tax return, nor advised that plaintiff was being excluded as a residuary legatee until the final account was offered; that affiant never believed it necessary to take any steps to assert her right to distribution and that affiant and his client had no knowledge of any partial distribution other than to Dorothy Sullivan. No affidavits were filed by defendants in the instant case. Furthermore, plaintiff was prepared to offer evidence to support the allegations raised in the plaintiff’s affidavit.

The defendants next argue that the failure of plaintiff to assert her rights in the earlier proceedings of Jean Sullivan, et al., to construe the will of Agnes Graser precluded her from filing a second proceeding for a construction of the will. Essentially, the defendants are raising the issue of res adjudicata. The elements of res adjudicata, sometimes referred to as estoppel by judgment, are: (1) the identity of the cause of action; (2) the identity of the parties or their privies; (3) the identity of necessary issues of law and fact; and (4) the entry of a judgment or decree based on a determination of necessary issues.

In the instant case the second element fails in that there was no identity of parties or their privies. The plaintiffs in the first suit by Jean Sullivan, et al., were neither nieces nor nephews of the decedent and were involved in no way in the second suit.

The third element also fails in that there was no identity of factual issues. The first suit resolved one issue, namely, were Jean Sullivan and the other children of George Sullivan entitled to take the share to which George Sullivan, a nephew of the decedent, would have been entitled had he survived the testator. In the second suit, the issue was whether the words “paragraphs One to Thirteen” included paragraph Thirteen, thereby including or excluding plaintiff as a beneficiary of the residuary estate.

Furthermore, the order of the trial court specifically found contrary to the defendants’ contention, that the bar of res ad judicata did not apply.

Thus, having disposed of the procedural issues raised by the parties the issue of whether the court reached the right conclusion in construing the word “to” as a word of exclusion remains. Plaintiff contends that the word “to” is to be construed as a word of inclusion while the defendants contend that the lower court properly construed it as a word of exclusion.

In 86 CJS, 909, it is stated:

The word “to” is generally defined to be a word of exclusion unless, by necessary implication, it is manifestly used in a different sense. However, “to” is not necessarily a term of exclusion, and it is sometimes used in an inclusive sense, that is, as a word of inclusion, and thus it may have either an inclusive or an exclusive meaning, and in each case the meaning which will be attributed to it will depend on the subject matter and the manifest intention with which it is used.

In Black’s Law Dictionary, 4th ed, the word “to” is defined thusly: “This is a word of exclusion when used in describing premises; it excludes the terminus mentioned. ... It may be a word of inclusion. . . .”

It is plaintiff’s position that the will is ambiguous and to find the intent of the testatrix, the entire will, including the scheme of distribution, must be examined. It is defendants’ position that there is no ambiguity in the will and that the intent of the testator can be found by the plain language used by the testator.

The defendants contend that the use of different words in the will applying to the same subject matter indicates, or raises a strong presumption, that the testator had in mind different results, especially when associated with a qualified expression in one part of the will which is omitted in the other. The defendants point out that in Paragraph 19 the language “First to Sixteenth inclusive” and “Third to Fifteenth inclusive” was used by the testator and that in Paragraph 20 the language “One to Thirteen” was used without the use of the word “inclusive” and that testator intended a different meaning.

In 95 CJS, 815, it is stated:

Use of different words in the will applying to the same subject matter indicates or raises a strong presumption that the testator has in view different results, especially where associated with a qualifying expression in one part of the will that is omitted in the other.

This rule finds recognition in Edgar County Home v. Beltranena, 402 Ill 385, 84 NE2d 363 (1949), where the court said :

The testator must be considered to have used language with ordinary intelligence, and if he did so he clearly would not adopt these different modes of expression without intending a difference of meaning. It is only by recognizing the latter terminology as mere precatory expressions that an inconsistency can be avoided.

Plaintiff contends that this rule of construction applies only when the intent of the testator is clear and not when the will is ambiguous. Plaintiff argues that if the decedent had so clearly in mind what she meant, then following her prior language in Paragraph Nineteenth, she undoubtedly would have said in Paragraph Twentieth: “. . . among my nieces and nephews as enumerated in paragraphs 1 to 12 inclusive.” I agree. It is apparent that the testatrix thought of the word “to” as a word of inclusion in Paragraph Nineteenth and it is reasonable to assume that she did not think otherwise in Paragraph Twentieth. If, in fact, she had thought of the word “to” as a word of exclusion, certainly she would have stated in Paragraph Nineteenth, . . in Articles First to Seventeenth,” and “. . . and legacies in Paragraphs three to sixteen.”

The pleadings, however, in the instant case consisted of plaintiff’s complaint for construction of the will and the defendants’ motion to dismiss the complaint. I would hold that it was improper for the trial court to dismiss the complaint. The motion to dismiss should have been denied and the defendants given the opportunity to answer the complaint. This would have allowed the parties to introduce evidence of the testatrix’s intent.

In arriving at this conclusion, I take notice of the fact that decedent’s will was prepared by the same lawyer who is of counsel on the defendants’ brief and who referred to the words in Paragraph Twentieth of the decedent’s will as Paragraphs 1 and 13, in his motion to dismiss the amended complaint and the second amended complaint in the first supplemental proceeding. This and other facts would undoubtedly be brought out by plaintiff in the hearing regarding the construction of the testatrix’s will.

For the above reasons I would reverse the judgment of the lower court and remand for further proceedings to determine the testator’s intent.