text:
    (No. 33712.
    The People of the State of Illinois, Defendant in Error, vs. John Robert Wagoner, Plaintiff in Error.

      Opinion filed March 22, 1956.

      Frank W. Oliver, of Chicago, for plaintiff in error.
    Latham Castle, Attorney General, of Springfield, and John GutknECht, State’s Attorney, of Chicago, (Fred G. Leach, Edwin A. Strugala, Irwin D. Bloch, John T. Gallagher, Rudolph L. Janega, and William L. Carlin, of counsel,) for the People.
   Mr. Justice Davis

delivered the opinion of the court:

A jury in the criminal court of Cook County found the defendant guilty of the murder of Eva Baker and fixed his punishment at 199 years in the penitentiary. The court entered judgment and sentence upon the verdict. A proper understanding of the errors relied upon for reversal requires consideration of the pertinent evidence and trial procedure.

Two clerks of the Clarendon Hotel in Chicago testified in substance that about 7 P.M. on December 29, 1948, the defendant and a woman appeared at the hotel and registered as Mr. and Mrs. Tom Morris and were assigned to room 96; that they left the hotel separately prior to 9 P.M. and returned together shortly after 1 A.M. on December 30 and were taken to their room; that clerk Ross went to the room about 2 A.M. to collect for a telephone call which defendant had made, at which time he saw the defendant but not the woman in question; that the defendant left the hotel alone about 8 A.M. December 30; that about 11 A.M. clerk Ross saw the dead body of this woman, lying on the bed in room 96, without clothing, hands and knees tied, and later saw her body at the county morgue ; that ten or eleven days later he saw the defendant and several police officers in room 96; that clerk Schmitt saw the defendant at police headquarters; that an automatic Yale spring lock was on the door of room 96 which locked when the door closed and could be opened from the outside only with a key, but could be locked or left open by adjusting a lever on the inside; that they did not know whether the door was locked during the time in question; that Ross took the key downstairs after admitting the parties to their room, and that several hotel employees had pass keys to all rooms.

Louis James Delillas testified that he met a woman in a tavern in Chicago on December 27, 1948, wlm gave her name as Eva Baker; that he wrote his name and address on a match book cover and gave it to her and she wrote her name and address on the back of his army discharge paper; that he next saw her in the Cook County morgue on December 31, 1948, where he recognized her as the person he had talked with on December 27.

The coroner’s physician testified that on December 30, 1948, he examined the body of a woman at the county morgue and determined her death to be by asphyxiation and that witness Delillas told him the body was that of Eva Baker.

John Tyndall, a police officer, testified that he went to room 96 at the Clarendon Hotel on the morning of December 30, and there found a dead woman trussed and gagged with torn pieces of bed sheet, parts of which had been stuffed down her throat; that he first saw defendant about 12:30 P.M. on January 9, 1949, at which time officers Golden, Ascher, Clark, and hotel clerk Schmitt were present; that the officers interrogated the defendant with both Golden and the witness asking questions; and that later assistant State’s Attorney Austin and court reporter Harvey joined the officers. Tyndall then started to relate conversations between the defendant and himself, and defense counsel objected on the ground that the alleged statements were improperly taken while defendant was under arrest, and that the officers had no right to question him, and until such right was established the State could not introduce this testimony. The court excused the jury and the witness stated that the defendant had been in custody three days before he saw him and that he had no knowledge of whether the defendant had been taken before a magistrate during that period. Defense counsel then stated that anything done during this time and prior to taking the defendant before the nearest magistrate placed him under duress and made anything he said incompetent.

The State then withdrew officer Tyndall as a witness and called officer Golden who, out of the presence of the jury, testified that he first saw the defendant on January 7, 1949, at Detroit, Michigan; that he brought him to Chicago on January 8, on January 10 took him to the inquest, and on January 11 at 10:30 A.M. booked him for murder. On cross-examination officer Golden admitted that he had not taken the defendant before any magistrate or judge. The court then recalled the jury. Officer Tyndall was recalled and testified that during the interrogation of the defendant, a wager was made between the defendant and officer Golden on whether the telephone wire in room 96 had been cut; that the defendant was taken to room 96 with three officers and showed them where the wire had been cut.

Assistant State’s Attorney Austin testified that he first saw the defendant at Detroit on January 7, 1949, where he questioned him in the presence of court reporter Harvey, officers Golden and Ascher, and inspector Branton of the Detroit Police Department; that the defendant stated he met the woman in a tavern in the city of Chicago and they spent the night in a hotel room with another couple; that in the morning the other woman, known as Shanty Mary, and the defendant left the hotel room, and the woman later identified as Eva Baker, then alive, and the other man remained in the room together; that on January 8, the defendant waived extradition and was brought to- Chicago by officers Golden and Ascher. The witness was then handed People’s exhibits 13 and 14 marked for identification and purporting to be statements. He related that he first saw these exhibits on January 10. Defense counsel objected to any further testimony regarding the statement or confession designated as exhibit 14, on the ground that no proper foundation had been laid for its introduction. The court overruled the objection and the witness testified that at his office, on January 10, he read from a carbon copy of exhibit 14 and instructed the defendant to stop him and correct any mistakes and to initial such changes; that the defendant made corrections on pages 8, 24, and 28, but refused to sign the statement for the reason that he desired to consult his lawyer.

On cross-examination, Austin testified that while in Detroit he learned that the defendant feared he would be found guilty as an habitual criminal and sent back to the chain gang if returned to Tennessee, and, therefore, would rather stand trial in Chicago; that Austin had taken two statements from the defendant, exhibit 13 being the one taken in Detroit and exhibit 14 the one taken in Chicago; that court reporter Harvey, now deceased, had taken the statements in shorthand and later transcribed them, but the witness had no personal knowledge of whether the transcriptions were correctly made; that after the defendant had been returned to Chicago and confronted with Shanty Mary who denied being in the hotel room, he told the witness that the Detroit statement was false and that he wanted to tell the truth. Defense counsel then asked the witness whether he had advised the defendant of his constitutional rights before making the statement. The court sustained objections to this question. The State then offered in evidence People’s exhibits 13 and 14. Defense counsel renewed his prior objections and further objected on the ground that the State had not offered to produce others present when the statements were supposed to have been taken. The court overruled the objections and admitted both documents in evidence. Exhibit 13 was later withdrawn by the State.

Officer Golden testified that he saw the body of the woman in the hotel room and that the defendant identified her. He told of questioning the defendant in Detroit and that the witness and officer Ascher brought the defendant to the Chicago detective bureau office on the evening of January 8. He testified that on January 9, the defendant stated that he wanted to make a statement; that he advised him that there was no need to make a statement — that they didn’t need it, but the defendant insisted and that assistant State’s Attorney Austin and court reporter Harvey were called in and the statement was taken. On cross-examination officer Golden named several other officers who were present during the questioning and admitted that he asked many questions both in Detroit and Chicago.

The essence of the statement is that the defendant met a strange woman in a tavern where they imbibed freely and then went to the Clarendon hotel room where they had intercourse several times; that upon awakening, he discovered the woman had taken his money; that before leaving the hotel on the morning of December 30, he asked for his money and the woman began to scream and that he tied her with torn bed sheets and stuffed some in her mouth to keep her quiet; that he had no intention of killing her; that later that day he learned that she was dead; that he lived in various hotels in Chicago until January 5, when he left the city; and that the body of the woman in the morgue, identified as Eva Baker, was the same woman he had left tied in the hotel room.

The defendant and Francis Murphy were witnesses for the defense. The defendant testified that he had been thrice convicted of crimes in Tennessee and had there served 16 years with the chain gang; that he met the woman in question at a tavern and they registered as Mr. and Mrs. Tom Morris and occupied room number 96 at the Clarendon Hotel, Chicago, where they had intercourse; and that he left the hotel about 1:3o A.M. December 30, at which time the woman was alive, drinking, and sitting on the bed. He denied that he tied, gagged, choked or strangled her. He further testified that as he was leaving the hotel, he told the clerk that his wife was still in the room and that the clerk replied that the woman was not his wife and asked if he might go to the room and then got into the elevator and said that he was going up tO' room 96. The defendant further testified that after leaving the hotel he went to a tavern where he met a man named Francis Murphy and stayed there until 4 or -5 A.M., following which he visited other taverns; that he stayed at various hotels in Chicago until January 5, when he went to Detroit; that while in custody in Detroit he saw a Chicago paper which contained the picture of the woman who had been with him in the hotel and thereby learned of her death, but that he had not killed her; that when the Chicago officers arrived they asked him if he wanted to tell them what happened in Chicago and that they were in a position to help him if he would help them; that upon being brought back to Chicago he was locked up on the fourth floor of the detective bureau with detectives on guard in eight hour shifts; that he was without food or drink for four days other than water and one sandwich which he bought; that when he was questioned the officers took two pair of handcuffs and fastened his hands against the wall and told him to help them and they would help him; and that they questioned him so much that he could not sleep. He further testified that officer Golden told him that the woman was no good; that this was only a case of manslaughter and that the officers had influence with the courts and would try to get him off with one to five years and that he would not have to go back to Tennessee; that when he was requested to sign a statement which had been prepared out of his presence, he accused the officers of not keeping their promise and refused to read it or sign it; that he did make a statement in his own handwriting after officer Golden had promised him a sentence of one to five years, but that such statement had not been produced in court.

Francis Murphy, a convict at the time of the trial, testified that he had been with the defendant in McGovern’s tavern in Chicago from 3 A.M. on December 30, 1948, until about 8 A.M.

Officer Golden was the only rebuttal witness called on behalf of the State. He denied that the defendant had been handcuffed while questioned and that he made any promises of leniency to him. He further testified that the defendant had been fed on the train while en route from Detroit to Chicago and had been fed several times during the four days while he was in custody and under questioning.

From the foregoing testimony, it appears that the pretrial confession of the defendant is the only direct evidence which connects him with the actual crime of murder. This confession was admitted in evidence over objections that it had been illegally obtained during a four-day period while the defendant was held prisoner on suspicion without a warrant, sleep, or food and drink, and while subjected to the “sweating process;” that no proper foundation had been laid for its admission; and that the State had not offered to produce all parties present when the statement was supposed to have been taken. The court, without voir dire hearing, overruled these objections and admitted exhibit 14 in evidence, and on this ruling the defendant has assigned error.

The constitution of the State of Illinois provides that no one shall be required to give evidence against himself in a criminal case (art. II, sec. 10) and that no person shall be deprived of life, liberty or property without due process of law. (Art. II, sec. 2.) Similar personal safeguards are found in the United States constitution.

Confessions are competent evidence only when they are voluntarily made. (People v. Sweeney, 304 Ill. 502; People v. Buckminster, 274 Ill. 435.) The confession of a defendant to which no objection is made is properly admitted in evidence without the introduction of preliminary proof, but if an objection is made, it is the duty of the court to hear, out of the presence of the jury, such evidence as the parties may present concerning the circumstances under which the confession was made, for the purpose of determining whether it was voluntarily made or was procured by pressure, fraud, hope, fear, or other undue influence. People v. Roach, 369 Ill. 95; People v. Frugoli, 334 Ill. 324; People v. Costello, 320 Ill. 79.

When counsel for the defense raised the objection of lack of proper foundation for People’s exhibit 14, it was the duty of the court to hear, out of the presence of the jury, such evidence as the parties may present as to the circumstances under which the confession was made. This was not done. This objection was the defendant’s request for a preliminary hearing out of the presence of the jury, to determine the competency of the confession. This rule of procedure is of long standing. (People v. Thomlison, 400 Ill. 555; People v. Frugoli, 334 Ill. 324; People v. Ziderowski, 325 Ill. 232; People v. Trimm, 323 Ill. 530; People v. Costello, 320 Ill. 79; People v. Sweeney, 304 Ill. 502.) Such preliminary hearing pertains to the competency of the confession which must first be determined by the court. It can never be properly left to the jury. (People v. Roach, 369 Ill. 95; People v. Fox, 319 Ill. 606.) The court’s failure to conduct a preliminary hearing to determine the circumstances under which the confession was made is sufficient reason to warrant a reversal of the conviction. (People v. Roach, 369 Ill. 95.) The greater weight, of authority on the subject is in accord with this pronouncement. 102 A.L.R. 608.

The burden is on the State to prove by a preponderance of the evidence that the confession is voluntary. (People v. Thomlison, 400 Ill. 555; People v. Roach, 369 Ill. 95.) Where there is evidence of improper conduct in obtaining the alleged confession, the State is required, if feasible, to produce all the persons having any authority or control over the defendant and show all circumstances surrounding the taking of such confession. The defendant should likewise testify to advise the court what actually transpired in the taking of the statement. The court may exclude such confession unless all of the parties present in connection with its taking are called as witnesses, and the court has no right to disregard the testimony of the accused showing that a confession was not voluntarily obtained, without a specific denial of the facts to which he testified. (People v. Ickes, 370 Ill. 486; People v. Arendarczyk, 367 Ill. 534; People v. Basile, 356 Ill. 171; People v. Holick, 337 Ill. 333; People v. Spranger, 314 Ill. 602; People v. Sweeney, 304 Ill. 502.) After such hearing the court determines whether the confession was voluntarily made and whether it is competent as evidence. If the confession is ruled to be competent, and admitted in evidence, the defendant still has the right to present his evidence before the jury on questions of credibility or the weight to be given the confession. People v. Schwartz, 3 Ill.2d 520; People v. Roach, 369 Ill. 95; People v. Cleaver, 365 Ill. 93.

The record shows that assistant State’s Attorney Austin, court reporter Harvey, officers Golden, Ascher, Clark, Allan, Ponicki, Tyndall and Green were all present at various times in connection with the taking of the alleged confession. Court reporter Harvey was deceased at the time of the trial and only officers Tyndall and Golden and assistant State’s Attorney Austin testified before the jury. The record is silent concerning whether the other officers were present in court. It was the duty of the State to produce all such persons, if practicable, and it was the duty of the court to hear them on preliminary hearing pertaining to the competency of the confession. The breach of such obligations by the court and the State constitutes reversible error.

Other grounds are advanced for reversal, but in the view we take of the case, they need not be stated.

“A defendant, guilty or innocent, is entitled to a fair, orderly and impartial trial in accordance with the law of the land. * * * There is not one form of trial for a guilty, and a different type for an innocent defendant.” (People v. Black, 367 Ill. 209 at 213.) The defendant in this case did not receive a fair trial.

For the errors committed the judgment of the criminal court of Cook County must be reversed and the cause remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Chief Justice Hershey

license: Public Domain

text:
    (No. 33549.
    The People ex rel. John B. Brenza, County Collector, Appellee, vs. Turnverein Lincoln, Appellant.

      Opinion filed January 19, 1956
    Rehearing denied March 19, 1956.

      Owens, Owens & Rinn, of Chicago, (John E. Owens, and Vincent G. Rinn, of counsel,) for appellant.
    John GuTknecht, State’s Attorney, of Chicago, (Gordon B. Nash, Edward E. Peusdrak, Charles D. Snewind, and William Sylvester White, of counsel,) for appellee.
   Mr. Chief Justice Hershey

delivered the opinion of the court:

This appeal from the county court of Cook County involves the question of whether certain property of the appellant, Turnverein Lincoln, a corporation not for profit, is exempt from general real estate taxes for the years 1939 through 1952 as being the property of a school. (Ill. Rev. Stat. 1953, chap. 120, par. 500.) The county court overruled the appellant’s tax objections, thereby refusing to hold the property tax exempt, and this appeal followed.

The case is here on undisputed facts and stipulations which show the following relevant matters:

Turnverein Lincoln was incorporated not for profit in 1885. Since 1939 it has occupied the premises at 1005-1019 Diversey Parkway in Chicago, 99 per cent of which is used for classes in physical education. Two buildings there front 200 feet and are 125 feet deep. The main building has a large swimming pool, with shower and locker rooms, a registrar’s office, and four classrooms on the first floor. On the second floor is a gymnasium, an equipment room, and two large classrooms. The other building, connected with the first, has an auxiliary gymnasium, with three classrooms on the first floor and two on the second.

Turnverein Lincoln has been active in physical education since its inception and is referred to as “Lincoln Turners.” The Turnverein societies are physical education societies started by Frederick Jahn in Germany in the early nineteenth century, and German immigrants carried on their work and organizations in this country.

Regular classes are held in gymnastics and swimming. Classes begin the first Monday of September and run ten months. There are both day and evening classes, with Sunday classes for leaders.

Boys and girls of all races, creeds and nationalities, whether the children of Turnverein Lincoln members or not, are acceptable as students. Attendance has varied from 847 to 1000 regularly attending students.

Instruction is supervised by teachers in organized class groups, resembling formalized schooling rather than social playground or swimming pool activity. Certificates and diplomas are granted.

Credits issued to students of both the gymnastic and swimming classes are recognized by various schools of physical education, including the Normal College of Physical Education of Indiana University. In addition, the swimming certificates are recognized by the American Red Cross.

Turnverein Lincoln graduates have gone directly into positions with the city of Chicago, the Chicago Park District, and other public recreation programs. One graduate is supervisor of the bureau of recreation of the city of Chicago, while another is director of physical education of the Chicago board of education. Sixty to seventy per cent of all Chicago playground instructors (some 400 in the last 30 or 40 years) are Turnverein Lincoln trainees.

All officers and directors serve without financial compensation.

The United States Treasury Department, after an investigation of the activities of Turnverein Lincoln, declared it to be organized and conducted exclusively for educational purposes. Accordingly, it is exempt from filing income tax returns and is entitled to receive gifts which are deductible by the donors for Federal income tax purposes.

To determine whether the property of the appellant is exempt from taxation, it is necessary to consider what constitutes a “school” or “school purposes” under the constitutional exemption of property “used exclusively for * * * school * * * purposes” (Ill. Const., art. IX, sec. 3,) and under the statute exempting “all property of schools, including the real estate on which the schools are located and other real estate used by such schools exclusively for school purposes.” Ill. Rev. Stat. 1953, chap. 120, par. 500.

We have repeatedly held that statutes passed for the purpose of exempting property from taxation must be strictly construed, and all debatable questions resolved in favor of the tax. See, for example, Turnverein Lincoln v. Board of Appeals, 358 Ill. 135, a case involving this same institution.

In that case, decided in 1934, we defined a school for this purpose as follows: “A school * * * is a place where systematic instruction in useful branches is given by methods common to schools and institutions of learning, which would make the place a school in the common acceptation of that word.” (358 Ill. 135, 142.) This was consistent with People ex rel. McCullough v. Deutsche Gemeinde, 249 Ill. 132, where this court observed that establishments called schools which are conducted for teaching dancing, riding, deportment and the like are not schools in the ordinary sense.

Here, the record shows that the appellant conducts classes in swimming and gymnastics. Is it, therefore, a school within the meaning of our exemption statute? We decided it was not in the first Turnverein case, but because of substantial factual differences, the earlier case is not necessarily controlling here.

The courts of other States are divided as to the taxable status of this type of institution, but the later cases seemingly favor the tax, with one State overruling an earlier decision which granted the exemption. Thus, an exemption was allowed in Buffalo Turn Verein v. Reuling, 155 Misc. 797, 281 N.Y.S. 545 (see also 257 App. Div. 902, 12 N.Y.S. 2d 170), North St. Louis Gymnastic Society v. Hudson, 85 Mo. 32, and Denver Turn Verein v. McGlone, 91 Colo. 473, 15 P.2d 709; but it was denied in Socialer Turnverein v. Board of Tax Appeals, 139 Ohio St. 622, 41 N.E.2d 710, and German Gymnastic Association v. City of Louisville, 306 Ky. 810, 209 S.W.2d 75 (overruling 117 Ky. 958, 80 S.W. 201).

In the ordinary school, physical education is a part, but only a part, of the curriculum. And while instruction in swimming and gymnastics is educational in a broad sense, it is not sufficient, standing alone, to bring an institution within the scope of our statute, where, as aforesaid, a restrictive meaning is intended.

This is consistent with the reasons usually advanced for exempting school property from taxation, expressed as follows in a recent Minnesota case: “It seems clear from the foregoing that this constitutional tax exemption for private educational institutions was intended to extend only to those private institutions which provide at least some substantial part of the educational training which otherwise would be furnished by the various publicly supported schools, academies, colleges and seminaries of learning and which, to such extent, thereby lessen the tax burden imposed upon our citizens as the result of our public educational system.” (State v. Northwestern Vocational Institute, Inc. 232 Minn. 377, 45 N.W.2d 653, 655.) Here, the taxpayer does not contend that the instruction given at Turnverein lessens the burden of taxation necessary to support our government-financed and operated schools.

The judgment of the county court of Cook County is affirmed.

ludgment affirmed.


author: Mr. Justice Davis

text:
    (No. 33786.
    Jarrett R. Butler et al., Appellees, vs. Richard M. O’Brien et al.—(Thelma Bishop, Appellant.)

      Opinion filed March 22, 1956.

      William E. Moran, of Chicago, for appellant.
    Harold J. Clark, and Moore, Ming & Leighton, both of Chicago, for appellees.
   Mr. Justice Davis

delivered the opinion of the court:

This is an appeal by defendant Thelma Bishop from a decree of the superior court of Cook County declaring that a certain writing is not the last will and testament of Betty L. Gilliard, deceased, and setting aside the probate thereof.

Betty L. Gilliard died on June 22, 1953. The alleged writing was admitted to probate by the probate court of Cook County and letters testamentary issued to the defendant Richard M. O’Brien, designated as executor therein, on October 28, 1953. The instrument named the defendant Thelma Bishop as the sole beneficiary of the estate, consisting of real and personal property, valued at approximately $25,000. On July 26, 1954, the plaintiffs, first cousins of the decedent and her sole heirs-at-law, filed complaint alleging lack of testamentary capacity on the part of the decedent, the direct exercise of undue influence by the defendants, and the existence of a fiduciary relationship between decedent and defendants. Answers were filed by defendants denying these charges. A freehold is involved, hence the appeal comes directly to this court. Challiner v. Smith, 396 Ill. 106.

It appears from the evidence that the decedent, Betty L. Gilliard, was approximately 80 years old at the time of her death. For some time prior thereto, she had lived in her residence at 4429 South Michigan Avenue in Chicago. Until 1950 she was active in the management of her own property. In 1950, 1951, and part of 1952, defendant Bishop and her husband and child resided on part of the premises owned by decedent. In the fall of 1952, decedent was in such poor health that a nephew by marriage, Edward M. Baker, came from Philadelphia to care for her. He obtained a physician for her and procured her admission to the Chicago Hospital. In December, 1952, Baker brought decedent back to her home and hired a nurse for her. That same month, Baker, on the recommendation of defendant Bishop, consulted Dr. Horrall, who soon had decedent admitted to Wesley Memorial Hospital. She was very weak and feeble and he treated her for heart condition, edema and dropsy. At that time, Baker opened a checking account to take care of decedent’s expenses. He deposited funds, signed checks in advance and gave them to defendant Bishop for the purpose of drawing money to meet decedent’s expenses. On April 12, 1953, the decedent was discharged from Wesley Memorial Hospital, and removed to a bed in the dining room of her home. Baker hired defendant Bishop to care for decedent and arranged to pay her $50 a week for her services. On June 4, 1953, decedent executed the purported will. On this occasion, she tried twice to sign her name but was so enfeebled that she could not do so and ultimately signed by making a mark. When the writing in question was executed, she was surrounded by persons who were neither relatives nor old friends. Thereafter, her health improved somewhat until about June 11, 1953, when she began to fail steadily and so continued until her death on June 22.

Since the appellant contends the evidence establishes neither testamentary incapacity nor undue influence, it is necessary to detail the testimony of the witnesses on these points.

Sarah Ozella, a school teacher and life-long friend of Betty Gilliard, testified for plaintiffs that she had close contact with her for over 15 years; that she saw her four or five times a week during the last year of her life and two or three times after she came out of the hospital in April, 1953; that she saw her about twice a week in the hospital and the decedent appeared to be very sick; that on June 2, 1953, decedent was limp and did not recognize the witness; that she looked in the wrong direction and was trying to locate the part of the bed where the witness was sitting; that at that time decedent said to defendant Bishop, “Thelma, take that knife out of your bosom,” and Mrs. Bishop then put her hand on the bed to satisfy decedent; and that in referring to the incident, defendant Bishop told the witness that “she [decedent] has been acting queer like that lately.” Sarah Ozella further testified that when she asked Betty Gilliard to talk to her, decedent did not move and her eyes appeared to be glassy. Mrs. Ozella was of the opinion that decedent, Betty Gilliard, was not of sound mind. After June 2, Mrs. Ozella tried to see decedent often but was not permitted to do so by defendant Bishop.

Lela Boston, a close friend, testified that decedent was very sick on June 3, 1953, but was not permitted to express an opinion as to her mental condition.

A neighbor, Erma Williams, testified that she had seen the decedent on April 14, 1953, after her return from the hospital; that she was ill and groggy; that the following day the witness came to stay with the decedent while Mrs. Bishop went to the dentist, but Mrs. Bishop would not let her stay; and that on two other occasions she attempted to see the decedent but Mrs. Bishop would not permit it.

Ruby Jefferson, who had known Betty Gilliard for the last 20 years, testified that she visited decedent every other day from April 7, to June 22, 1953, and observed her condition during those days; that on June 4, 1953, Betty Gilliard was in terrible condition and looked as though she was in a stupor; that she was very, very weak and partially blind. Mrs. Jefferson further testified that she asked the decedent if she knew her, and decedent merely smiled. The witness was of the opinion that between April 7 and June 4, decedent’s mind was “in a mighty bad state.”

Edward M. Baker, decedent’s nephew, testified that he saw his aunt about 12 times during the last six months of her life; that on April 12 she was “very, very feeble;” that on April 17, the last time he saw her, the doctor said that her death was just a matter of time; that she was unable to do anything and slept practically all the time; and that she could not transact business during these last six months. The witness was of the opinion that her mind was not clear during the last six months of her life.

Roosevelt Robertson, who had known Betty Gilliard for 30 years, testified that he visited her frequently at the hospitals, and saw her in May and June of 1953, particularly between May 30 and June 5; that in the early days of June she was weaker than when she had left the hospital and had practically no use of her arms; that she was unable to transact any business; and that he had difficulty in getting into the apartment to see decedent when Mrs. Bishop was there. The witness was of the opinion that decedent “wasn’t of good mind.”

Two of the attesting witnesses were called adversely by plaintiffs and testified that they lived in the same building as the decedent and that they were asked by the defendant Bishop to be witnesses to the purported will on the evening of June 4, 1953.

John E. Kelly, attorney for the defendant-executor, was called by plaintiffs and testified that the purported will was prepared in his office, but that he never saw the decedent, Betty Gilliard.

At the close of the plaintiffs’ case, the defendants called the two attesting witnesses, who had previously testified and put in the formal proof of the execution of the will. They did not call the other attesting witness, Dr. Horrall, because of ill health, but read into the record the transcript of his testimony taken in the probate proceeding.

Keith Le Kanter, an employee of the First National Bank of Chicago, appeared for the defendants and testified that he called on the decedent on May 20, 1953, to explain that they could no longer honor her checks because of the illegible signature. He also brought a form of power of attorney to permit Thelma Bishop to sign checks for her. Mrs. Gilliard did not execute the power of attorney but wanted to think it over and possibly discuss it with her attorney. The witness expressed the opinion that the decedent was then of sound mind.

The defendant Bishop assigned as error the ruling of the trial court denying defendants’ motions for a directed verdict and for judgment notwithstanding the verdict. These motions raise the same questions and are governed by the same rules of law. (City of Monticello v. LeCrone, 414 Ill. 550; Hughes v. Bandy, 404 Ill. 74; Tidholm v. Tidholm, 391 Ill. 19.) In the Tidholm case at page 24 we stated in reference to such motions: “The only question in such a case is whether there is any evidence in the record tending to prove the allegations of the complaint. The party resisting such motions is entitled to the benefit of all the evidence favorable to him. Hunt v. Vermillion County Children’s Home, 381 Ill. 29; Ryan v. Deneen, 375 Ill. 452; Ginsberg v. Ginsberg, 361 Ill. 499; Greenelees v. Allen, 341 Ill. 262.” In view of the evidence in this case, we do not believe that the trial court erred in overruling these motions.

Defendant Bishop also- contends that the trial court erred in permitting lay witnesses to testify as to the testamentary capacity of decedent. There is little dispute on the basic legal principles governing will contests in Illinois. Testamentary capacity requires only that the person making a will have sufficient mind and memory to understand the particular business in which he is engaged, to know the natural objects of his bounty, and the character and extent of his property, and to make disposition of said property according to a plan formed in his own mind. Logsdon v. Logsdon, 412 Ill. 19; Long v. Brink, 353 Ill. 549; Forberg v. Maurer, 336 Ill. 192.) To prove lack of testamentary capacity, we have uniformly permitted the testimony of lay witnesses. (Mitchell v. Van Scoyk, 1 Ill.2d 160; Peters v. Peters, 376 Ill. 237; Britt v. Darnell, 315 Ill. 385.) But a lay witness must-testify to sufficient facts and circumstances to afford reasonable ground for a belief in the soundness or unsoundness of mind of the person whose mental capacity is questioned and to indicate that his opinion is not a guess, suspicion, or speculation. (Lewis v. Deamude, 375 Ill. 219; Britt v. Darnell, 315 Ill. 385.) He must be able to intelligently express an opinion. (Mosher v. Thrush, 402 Ill. 353.) Superficial opinions based on casual impressions or observations on chance meetings are of little value. Forberg v. Maurer, 336 Ill. 192.

The dispute here relates to the application of these principles to the evidence in the record. We turn first to the question of whether the trial court erred in permitting certain of the plaintiffs’ witnesses to give an opinion as to the testamentary capacity of decedent. Plaintiffs’ witnesses giving opinions on testamentary capacity were Sarah Ozella, Ruby Jefferson, Edward M. Baker, and Roosevelt Robertson. All of them had known the decedent well and were close friends. They testified to numerous conversations with her and to facts and circumstances which established that they had adequate occasion for close scrutiny of decedent over a period of many years. Their testimony related the progressive deterioration of Betty Gilliard’s mind and body; her inability to get around and handle her own affáirs, and, in the end, her failure to even recognize them. These witnesses, except Edward M. Baker, had been with the decedent within a few days of the execution of the will, and Baker, who had a good chance to watch his aunt after taking over the handling of her affairs, had seen her last within two months of the execution of the will. From a reading of the entire record we think that it is clear that the witnesses had ample opportunity to observe the condition of the decedent and that their observations were sufficiently contemporary to be admissible. (Peters v. Peters, 376 Ill. 237; Todd v. Todd, 221 Ill. 410.) The case of Peters v. Peters, 376 Ill. 237, is especially applicable here. It was there held that the testimony of witnesses, who based their opinion of soundness of mind on conversations a few months before the execution of the will, was admissible. At page 243, we stated that: “Proof of the mental condition of the testator a reasonable time before or after the making of a will may be received where it tends to show mental condition at the time of the execution of the instrument. A mental condition shown to exist is presumed to continue, if it be of a continuous nature. Todd v. Todd, 221 Ill. 410.”

Defendant Bishop further asserts that even if such testimony was admissible, it was not of sufficient weight, taken in its entirety, to permit the jury to find that the decedent lacked testamentary capacity. She points out that the witnesses did not specifically testify that decedent did not have mental capacity to understand the business in which she was engaged, know the objects of her bounty and the extent of her property. Conceding this to be true, we know of no case or rule of law which requires that witnesses testify to these conclusions. It is for the jury to determine the testamentary capacity of the decedent from all the evidence and neither the trial court nor this court will weigh the evidence. The sole question is whether plaintiff has made out a prima facie case sufficient to go to a jury. (Mitchell v. Van Scoyk, 1 Ill.2d. 160.) The jury was completely and accurately instructed on the law, and from reading the record we are convinced that there was sufficient evidence to establish a prima facie case for consideration by the jury.

Since defendants made no motion to take the issue of undue influence from the jury, and the jury returned a general verdict that the writing was not the will of Betty Gilliard, the verdict would be sustained if there was sufficient evidence on either the charge of lack of testamentary capacity or undue influence. (Holland v. People’s Bank and Trust Co. 303 Ill. 381.) However, we are of the opinion that the evidence of undue influence, in itself, was sufficient to go to the jury.

On the question of undue influence, defendant Bishop relies on the well recognized rule set forth in Mosher v. Thrush, 402 Ill. 353 at 357: “The law is settled that to avoid a will upon the ground of undue influence it must-be directly connected with the execution of the will itself. It must operate when the will is made, and must be directed especially toward procuring the will in favor of particular persons, and must be of such a character as to destroy the testator’s freedom of will, so as to render his will obviously the result of the mind and brain of some other person.”

However, the complaint also charged and proof was made to show the existence of a fiduciary relationship between the decedent and the defendant Bishop. We have repeatedly announced that “Where a fiduciary and dominant party, in whose behalf a will is drawn, is directly connected with the making of the will by its preparation, or by participating in its preparation and execution, proof of these facts establishes prima facie the charge that the will resulted from undue influence exercised by the beneficiary.” (Mitchell v. Van Scoyk, 1 Ill.2d 160 at 173.) And we have often held that where a fiduciary relationship exists “the active agency of the chief beneficiary in procuring a will especially, in the absence of those having equal claim on the bounty of the testator who was enfeebled by age and disease, is a circumstance indicating the probable exercise of undue influence. In that connection we have observed that a mind wearied and debilitated by long-continued and serious illness is susceptible to undue influence and liable to be imposed upon by fraud and misrepresentation; that the feebler the mind of the testator, no matter from what cause, whether from sickness or otherwise, the less evidence will be required to invalidate the will of such person.” (Mitchell v. Van Scoyk, 1 Ill.2d 160, at 172.) Also see, Wiik v. Hagen, 410 Ill. 158; Sulzberger v. Sulzberger, 372 Ill. 240; Dial v. Welker, 328 Ill. 56; Donnan v. Donnan, 256 Ill. 244.

We believe that the evidence in this record on the issue of undue influence and the existence of a fiduciary relationship between decedent and defendant Bishop is sufficient to prove a prima facie case on behalf of the plaintiffs. There is no question but that the decedent was weak and bed ridden and incapable of conducting her own business. Defendant Bishop lived with the decedent and cared for her for almost two months when she could do> nothing for herself. During this time she handled decedent’s business. Beginning about the time the will was executed, defendant Bishop, to the best of her ability, prevented friends of Mrs. Gilliard from seeing her. Defendant Bishop procured the witnesses to the will. Although about two weeks before, decedent advised witness Le Kanter that she would consult her own attorney regarding the execution of a power of attorney, the purported will in question was drawn by an attorney who never saw decedent. The attorney who drew the will represented the executor-defendant in the probate proceeding and appeared of record and participated in the trial of the will contest on his behalf. While the attorney did not testify as to who asked him to prepare the will and who furnished the directions concerning its provisions naming defendant Bishop as sole beneficiary and defendant O’Brien as executor, this evidence was within the knowledge and control of the defendants. The failure of the defendants to produce such evidence within their control justified the jury in presuming that it would be adverse to them. Mitchell v. Louisville and Nashville Railroad Co. 375 Ill. 545; Belding v. Belding, 358 Ill. 216.

The remaining error assigned by defendant Bishop was that the trial court erred in denying her motion for new trial. We concur with the trial court in this ruling. In City of Monticello v. LeCrone, 414 Ill. 550 at page 556 we held: “The rule is well settled that a court will not set aside a verdict merely because the evidence is conflicting. Nor can a reviewing court usurp the function of a jury by substituting its judgment for that of a jury in passing on the weight and credibility of conflicting testimony. People v. Bond, 281 Ill. 490; Franks v. Matson, 221 Ill. 338.” The evidence in the case at bar was conflicting and from the entire record we are of the opinion that it was sufficient to warrant the jury in finding that the writing was not the will of the decedent. The decree of the trial court is accordingly affirmed.

Decree affirmed.


author: Mr. Justice Daily

text:
    (No. 33822.
    Alfred R. Dick et al., Appellants, vs. Roy C. Roberts et al., Appellees.

      Opinion filed March 22, 1956.

      C. G. Colburn, of Virginia, for appellants.
    Milton McClure, of Beardstown, for appellees.
    Robert A. Stuart, of Springfield, for Illinois Association of Park Districts, amicus curiae.

   Mr. Justice Daily

delivered the opinion of the court:

The Beardstown Community Park District, consisting of the city of Beardstown and the surrounding farm community, was organized in July, 1954, under the provisions of our Park District Code (Ill. Rev. Stat. 1953, chap. 105, pars. 1 — 1 to 12 — 2.) Immediately thereafter, meetings were held and plans made for the building of a community swimming pool to be paid for by the issuance of general obligation bonds, and at a special election on September 25, 1954, the voters of the district, by almost a two-to-one margin, voiced their approval of this project by affirmatively answering the following proposition: “Shall bonds of Beardstown Community Park District, Cass County, Illinois, to the amount of One Hundred Ten Thousand Dollars ($110,000) be issued for the purpose of acquiring lands for a park and building, maintaining, improving and protecting the same including building of a swimming pool thereon, and for the payment of expenses incident thereto ?”

However, certain taxpayers of the park district contended that the election had not been held in accordance with constitutional and statutory requirements, and for that reason, on October 11, 1954, a complaint was filed by them in the circuit court of Cass County to enjoin the park commissioners from issuing the bonds in question and to restrain the county clerk of Cass County from extending any taxes for the payment of this indebtedness. A temporary injunction was thereafter issued, but upon hearing of this cause, the injunction was dissolved and the case dismissed as without merit. Direct appeal has now been taken to this court.

To determine the legality of the proceedings in the present case, we must first look to the powers that are granted to such districts by the applicable provisions of the Park District Code. Article eight, section 8 — 10, (Ill. Rev. Stat. 1953, chap. 105, par. 8 — 10,) provides: “All park districts shall have power to * * * construct, equip, and maintain * * * indoor and outdoor swimming pools * * * and the power to make and enforce reasonable rules, regulations, and charges therefor.” Section 6 — 2 of article six (Ill. Rev. Stat. 1953, chap. 105, par. 6 — 2,) states: “For the payment of land condemned or purchased for parks or boulevards, for the building, maintaining, improving and protecting of the same and for the payment of the expenses incident thereto, or for the acquisition of real estate and lands to be used as a site for an armory, any park district is authorized to issue the bonds of such park district and pledge its property and credit therefor to an amount including existing indebtedness of such district so that the aggregate indebtedness of such district shall not exceed two and one-half (2%) per centum of the value of the taxable property therein * * Section 6 — 4 of the same article, in providing for a referendum in such cases, specifies that the ballot used shall be in substantially the following form:

Also of special interest is article nine, section 9 — 1 (Ill. Rev. Stat. 1953, chap. 105, par. 9 — 1,) which contains the following provision: “Any park district has the power * * * to construct and operate an outdoor or indoor swimming pool, borrow money, and as evidence thereof to issue its bonds, payable solely from the revenue derived from the operation thereof.”

Plaintiffs’ counsel has admitted, in oral argument to this court, that were it not for section 9 — 1 the powers contained in section 6 — 2 are broad enough to include park pool construction. However, relying upon the maxim of expressio unius est exclusio alterius, the plaintiffs contend that by expressly mentioning swimming pools in section 9 — 1, our legislature thereby inferred that swimming pools were not to be included in the general provisions of section 6 — 2. Therefore, they argue, the park district was without authority to finance the building of a swimming pool except by the sale of revenue bonds and since the election in question was concerned with general obligation rather than revenue bonds, the entire bond issue was null and void. The plaintiffs also contend that the proceedings were defective because no land had in fact been condemned or purchased by the district prior to the time of the election and because the ballot, in expressly referring to the building of a swimming pool, contained a purpose not authorized by statute and a double proposition which was contrary to article 2, section 18 of our constitution. Thus, we must now decide the following questions: (1) Does article six, section 6 — 2 of the Park District Code authorize the issuance of general obligation bonds for the purpose of building a swimming pool, and (2) if so, were all statutory and constitutional requirements substantially complied with in the present case.

The principle of exclusion which is relied upon by the plaintiffs is not a rule of law but is a mere rule of statutory construction which is used by the courts in arriving at the real intention of the legislature where such intention is not clearly manifest from the language itself. (Illinois Central Railroad Co. v. Franklin County, 387 Ill. 301; The Chicago and Northwestern Railway Co. v. City of Chicago, 148 Ill. 141.) If, after considering the necessity or reason for the enactment, the language used, and the object desired, the true legislative intent can be ascertained, then no reason remains for resorting to such a construction aid. People ex rel. Wilson v. Illinois Central Railroad Co. 396 Ill. 510; Illinois Central Railroad Co. v. Franklin County, 387 Ill. 301; Jones v. Pebler, 371 Ill. 309; Warner v. King, 267 Ill. 82.

Under the present statute, the legislature has afforded a means by which a park district may pledge its entire credit for the purpose of building, maintaining, improving, and protecting its property and carrying out the powers which have been granted to it, subject, however, to the referendum requirement and debt limitation as is therein specified. The lawmakers have also provided that in order to construct and operate a swimming pool, a park district may issue bonds which are payable solely from the revenue derived therefrom without the necessity of submitting the question to referendum, unless such is demanded by the voters, and without regard to the present debt limitation. It can hardly be said that these provisions either conflict or that their meanings are so obscure as to justify the use of the maxim above-mentioned. Rather, it is clear that the legislature recognized not only the great benefits which may be derived from a public swimming area but also the enormous costs which such a project might entail, and as a result of this foresight, has provided a means by which such recreational facilities may be acquired and enjoyed by districts which could not, because of their debt limitation, pledge their general credit for this purpose. In so providing for the sale of revenue bonds, the legislature has also made it possible for a district to undertake other projects which must be financed by general bonds and which might otherwise have to be postponed until the park pool indebtedness had been retired. It must also be remembered that- in some localities, the revenue derived from swimming pool operations would be insufficient to retire the construction indebtedness and the only practical way to acquire such facilities is through the sale of general obligation bonds. We do •not believe that it was the legislature’s intent to deprive these areas of such an important park activity.

This view receives considerable support from the statute itself. Article one, section I — 2(g) (Ill. Rev. Stat. 1953, chap. 105, par. 1 — 2) reads as follows: “The provisions of this code shall be cumulative in effect and if any provision is inconsistent with another provision of this code * * * it shall be considered as an alternative or additional power and not as a limitation upon any other power granted to or possessed by any park district.” According to Black’s Law Dictionary (3d edition, 1933) the word “cumulative” signifies “that two things are to be added together, instead of one being a repetition or in substitution of the other.” Thus, by express language, the legislature has indicated that the powers granted by section 9 — 1 are additional to those contained in section 6 — 2, and cannot in any manner, be considered as conflicting or exclusive. (Patteson v. City of Peoria, 386 Ill. 460; Chicago and Northwestern Railway Co. v. City of Chicago, 148 Ill. 141.) It is our opinion that article six, section 6 — 2 of the Park District Code does authorize the issuance of general obligation bonds for the purpose of building a swimming pool.

We must next consider the legality of the proceedings in the present case. The code provides that general obligations bonds may be issued “For the payment of land condemned or purchased.” The plaintiffs have interpreted this section to mean that the land must be purchased or condemned before the proposition is submitted to the voters for their approval. We cannot agree with this strained interpretation. A careful reading of the language of section 6 — 2 and that contained in section 6 — 4, discloses that the words “condemned or purchased” refer only to the time of payment and not to the time that the referendum is held. Were it otherwise, a district would be forced to shoulder legal and financial burdens without knowing whether the project itself will be approved. Such a dilemma is not contemplated by our statute.

Neither do we believe that the form of ballot used was defective. The proposition stated that the bonds were to be issued for the purpose of acquiring lands and building, maintaining, improving, and protecting the same including building of a swimming pool. It is true that the purposes authorized by section 6 — 2 refer only to “land condemned or purchased” rather than to “acquiring lands” and do not mention the building of a swimming pool. Yet, it is not every deviation from the prescribed form that renders a ballot defective but rather, as section 6 — 4 expressly states, substantial compliance therewith is sufficient. The real test is whether the voter has been given as clear an alternative as he would have had if the statutory form had been identically followed, and if so, the presence of additional information will in no way affect the ballot’s legality. (Peo ple ex rel. Wilson v. Illinois Central Railroad Co. 396 Ill. 510; Knappenberger v. Hughes, 377 Ill. 126; People ex rel. Howard v. Chicago and Eastern Illinois Railroad Co. 296 Ill. 246.) Here, the voters were not asked to decide two propositions by means of a single question. Instead, the only proposition presented was whether bonds should be issued for the purpose of acquiring lands for a park and improving the same. The fact that the voters were further informed as to the contemplated disposition of at least a part of these funds, cannot be said to have, in any way, restricted their freedom of choice, but, on the contrary, such information served to better apprise them of the facts at hand. It is our opinion that all statutory and constitutional requirements were substantially complied with in the present case. The decree of the circuit court of Cass County is, therefore, affirmed.

Decree affirmed.


author: Mr. Justice MaxwErr

text:
    (No. 33820.
    Homer D. Schwartzentruber, Appellant, vs. Walter C. Stephens et al., Appellees.

      Opinion filed March 22, 1956.

      Raymond H. Imig, and Branson Wright, both of Bloomington, for appellant.
    Costigan, Worrrab & Yoder, and Joseph W. DePew, both of Bloomington, for appellees.
   Mr. Justice MaxwErr

delivered the opinion of the court:

On February 27, 1953, plaintiff brought an action in equity in the circuit court of McLean County seeking to have himself declared a mortgagor in possession, of 30 acres off the south end of the east half of the northeast quarter of section 33, Danvers Township, McLean County, hereinafter referred to as tract I and a tenant in common with defendants Walter C. Stephens and Betty Stephens in the east half of the southeast quarter of section 33, Danvers Township, McLean County, hereinafter referred to as tract II.

In the complaint it is contended that conveyances of tracts I and II respectively by plaintiff and wife to defendants’ predecessor in title are in fact mortgages securing indebtedness of plaintiff to Tillie Stephens. An injunction was asked from a threatened suit to evict plaintiff from said tracts I and II, and an accounting was sought of the moneys which plaintiff states he has paid to defendants and their grantor to, satisfy sums due for principal, interest, taxes, insurance, expenses and maintenance of tracts I and II since dates of respective deeds. Plaintiff prayed to be decreed the equitable owner of tract I and the equitable owner in fee simple of an undivided interest in tract II.

The answer of defendants denied that the instruments were executed by plaintiff on the basis of the representations set forth in the complaint, wherein it was contended that the deeds were in fact mortgages; averred that said deeds were given in complete release of the indebtedness secured by trust deed referred to in the complaint and the adjustment of the accounts between the heirs for money due them respectively in the settlement of the Daniel R. Schwartzentruber estate; the answer likewise denied the possession of plaintiff under any agreement as alleged in the complaint but averred his entry into a lease in 1934 for said tracts I and II with Tillie Stephens and a further lease entered into by plaintiff with defendants on October 25, 1951, after the death of said Tillie Stephens, and denied on the part of both defendants any knowledge of any transactions of Tillie Stephens with plaintiff as alleged in the complaint. The answer further set up estoppel against plaintiff from claiming to be the owner of the premises or any part thereof on account of the fact he had entered into a lease for the premises. The pleadings of defendants likewise alleged that the conveyances made to Tillie Stephens were in full payment of the indebtedness secured by the trust deed in question and set up release of the trust deed and also alleged that by reason of the conveyance the debt was extinguished and Tillie Stephens then had both the full legal and equitable title to tract I.

Defendants prayed that they be declared to be the owners of tracts I and II and that title to these tracts be quieted in defendants, and also prayed for an order directing the plaintiff to turn over their share of the crop and pasture rent from March 1, 1953, as provided for in the lease. There also followed further allegations of estoppel and the defense of laches which had earlier been pleaded.

The defendants also filed a counterclaim realleging matters set up in the answer and among other things prayed for a dissolution of the injunction, the quieting of title, the decreeing of defendants to be owners of the premises free and clear of any claims of plaintiff and further praying for the plaintiff to turn over to defendants their share of crops from March 1, 1953.

A hearing was had on the application for temporary injunction. The injunction was granted with bond being furnished. The case then came to issue on the pleadings and was referred to a special master.

The special master reported, finding the warranty deed to tract I was an absolute deed of the equitable and legal title of the grantors and not a conveyance of their interest as security or additional security for any indebtedness due and owing from the grantors therein to the said Tillie Stephens; the deed conveying tract II was in fact, and intended by the grantors to be, a conveyance of the entire legal equitable title of the grantors therein, and not intended as additional security for any indebtedness due and owing from the grantors therein or any one or more of them to Tillie Stephens; the consideration for the execution and delivery of both deeds was the cancellation, satisfaction and settlement of all indebtedness then due from plaintiff and other children of Daniel R. Schwartzentruber to Tillie Stephens and other members of the Daniel R. Schwartzentruber family or their surviving spouses; that said deeds were made and delivered pursuant to and as a part of a full settlement and adjustment of all indebtedness that then existed between the members of the Daniel R. Schwartzentruber family to and from each other; that in the making of the deeds Tillie Stephens did not act falsely or fraudulently with intent to deceive plaintiff in the procurement thereof and was not acting in any fiduciary capacity; that plaintiff was guilty of laches in failure to assert any equitable interest which he has or may have had in tracts I and II and by reason thereof he is now barred by law and equity from prosecuting this suit to the ends prayed for in his complaint. The special master recommended defendants be given the relief prayed by them in their counterclaim.

Objections of plaintiff made to the report of the special master were overruled and stood as exceptions before the chancellor. The chancellor likewise overruled the exceptions and entered a decree substantially in conformance with the findings and recommendations of the special master. From that decree plaintiff has prosecuted this appeal to this court. On motion of plaintiff the injunction theretofore granted was continued in force during the pendency of this appeal, upon plaintiff filing a satisfactory bond.

The interest of the defendant Harry Lyle Mehl is not being contested in this proceeding and no appeal is taken from that portion of the decree relating to the judgment for $250 entered by the trial court in favor of Mehl and against plaintiff. The controversy in this case is confined solely to the rights of the plaintiff, Homer D. Schwartzentruber, and the defendants Walter C. Stephens and Betty S. Stephens.

Plaintiff sets forth eight errors relied upon for reversal. In his argument plaintiff states that the only question in this case is the question arising between Homer Schwartzentruber and Tillie Stephens’s grantees, Walter C. Stephens and Betty S. Stephens, as to whether, as between Homer Schwartzentruber and Tillie Stephens, the deed to tract I, dated March 24, 1934, and the deed to tract II, dated September 13, 1933, constitute mortgages.

Plaintiff complains that the trial court erred in that the decree is contrary to the law and the manifest weight of the evidence. The conveyances to Tillie Stephens were by warranty deed. Section 12 of the Mortgage Act (Ill. Rev. Stat. 1953, chap. 95, par. 13,) provides that every deed conveying real estate which shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage. The burden of proof rests upon the one asserting a deed absolute in form to be a mortgage to show that fact by clear, satisfactory and convincing proof. Deadman v. Yantis, 230 Ill. 243; Rankin v. Rankin, 216 Ill. 132; Novak v. Kruse, 288 Ill. 363.

As this court said in Warner v. Gosnell, ante, p. 24:

“There can be no question that a deed takes effect from its delivery and that its character at the time of such delivery becomes fixed as of that time. The question whether a deed which is absolute in form is to be taken as a mortgage depends upon the intention of the parties in that regard at the time of its execution. The intention may be found from the papers themselves or by aid of extraneous evidence which, when ascertained, will govern the decision.

“The law is well settled that the true character of the transaction may be shown by parol, and if, upon consideration of the facts, it clearly appears that the deed, though absolute in its form, was taken as security for the payment of money, it will in equity be held a mortgage. * * * The test or criterion, as was stated in the case of Illinois Trust Co. v. Bibo, 328 Ill. 252, at page 259, ‘is the continued existence of a debt or liability intended as a security for the debt or indemnity against the liability.’ If that liability is left subsisting, and if ‘the grantor is regarded as still owing and bound to pay it at some future time. * * * then the whole transaction amounts to a mortgage, whatever language the parties may have used and whatever stipulations they may have inserted in the instruments.’

“The gist of inquiry in cases of this class is what was the purpose for which the deed was executed; and it will be found, by references to the cases, that every fact or circumstance tending to illustrate the purpose and intent of the parties is admissible. The fact of an existing indebtedness in respect to which the deed was executed; the retention of the evidence of such indebtedness by the grantee in the deed; that the deed was procured by fraud or oppression or undue advantage; that there was a loan of money; the subsequent conduct of the parties in respect to the land, and, indeed, almost every conceivable state of facts legitimately illustrative of the transaction has been held competent evidence.”

The evidence shows that Daniel R. Schwartzentruber died intestate in 1919 leaving his widow, Elizabeth Schwartzentruber and his children, Tillie Stephens, Mona Stephens, Amelia Briggs, and plaintiff. At the time of his death Daniel R. Schwartzentruber owned tract II. A final report was filed in his estate reciting that the heirs desired to preserve his real estate intact without sale and to provide for the support and maintenance of his widow. It further provided that the widow was to have the income for life, she to apply the net income over what was required for her support, comfort and maintenance of the real estate toward the satisfaction and payment of any indebtedness due from Daniel R. Schwartzentruber including payments due from him to his children aggregating $13,613.50 with interest at five per cent from March 1, 1919, until paid. The final report further provided that the heirs would advance any sum required to pay and take up any indebtedness due from Daniel R. Schwartzentruber and that any amount advanced was to be adjusted at the death of the widow, provided the same had not been paid to them during her lifetime. The widow and heirs certified that the final report was true and consented that it be approved by the court.

As a part of the final report there was filed a memorandum of a family agreement signed by the widow and heirs. It recites, among other things, that there was due from Daniel R. Schwartzentruber to Tillie Stephens, $6001 ; to Mona Stephens, $5412.50; to Homer D. Schwartzentruber, $2200; which made the total of $13,613.50 referred to in the final report itself. It further contains a provision for interest and other recitals similar to those in the final report regarding disposition of the proceeds during the life estate of the widow. It further provides that if the widow, at her death, shall not have completed payments to the heirs, of the amount due them, the same should be adjusted on the above basis among and between the heirs.

After the death of Daniel R. Schwartzentruber, plaintiff farmed tract II as tenant of his mother, reserving the tenant’s share and, after paying the taxes and expenses of the farm, turned over the remainder of the landlord’s share to his mother. He had exclusive charge of tract II in the interim between the death of his father and death of his mother, which occurred on September 6, 1933.

During the period plaintiff was in exclusive charge of tract II, as tenant of his mother, the house on tract II was destroyed by fire. The fire occurred March, 1931, and on October 23, 1931, all interested parties entered into an agreement whereby Tillie Stephens advanced another $2500 which was to- be refunded to her and was to be a lien on tract II.

Plaintiff had rented the thirty acres, tract I, prior to March 1, 1920, when he purchased it. At the time of purchase he borrowed $4000 from Tillie Stephens, $3000 from Mona Stephens, and $2000 from William Miller and gave each of them a note. He later borrowed an additional $1000 from Tillie Stephens. He gave Tillie Stephens a new note for $5000 signed by himself and wife.

To secure Tillie Stephens for the $4000 he originally borrowed at the time of the purchase of tract I and the $1000 later obtained, plaintiff and his wife executed a trust deed to Lewis Stephens, trustee. This trust deed was dated May 21, 1932, and was due in three years. It covered tract I as well as plaintiff’s undivided interest in tract II.

On September 13, 1933, plaintiff and his wife, Charles Stephens, widower of Mona Stephens, deceased, and Amelia Briggs and her husband executed a warranty deed transferring tract II to Tillie Stephens. This deed, designated in the record as defendants’ exhibit F, recites on its face:

“Subsequent to the death of Daniel R. Schwartzentruber, and in the course of settlement of said estate, his heirs entered into a family agreement which is reported in the settlement of the estate, whereby his widow became entitled to said premises for life and said life estate having now terminated, the surviving heirs have made this conveyance to carry out said family settlement and to evidence the fact that the indebtedness recited in said former family agreement as due and owing to the several children of Daniel R. Schwartzentruber is now fully paid and satisfied and that in the course of such settlement of accounts, the Grantee herein became entitled to a conveyance of this property and still retains her interest in the remaining real estate owned by said Daniel R. Schwartzentruber, at his death, but that all other accounts and affairs of Daniel R. Schwartzentruber’s estate and the estate of his deceased daughter, Mona, are fully settled.”

By another warranty deed, dated and acknowledged March 24, 1934, plaintiff and his wife transferred tract I to Tillie Stephens. This deed, designated in the record as defendants’ exhibit H, was filed of record on March 30, 1934. It recites on its face:

“This deed is not a sale but is made to remove lien against said land and correct record title of grantee therein.”

The trust deed dated May 21, 1932, to Lewis Stephens, as trustee, was released of record on the margin on March 30, 1934, the same day the warranty deed to tract I was filed of record. The due date of the trust deed was May 21, 1935. This marginal release by Lewis Stephens, trustee, recites:

“In consideration of full payment of the debt heretofore secured, the note having been fully paid, cancelled and surrendered in my presence I hereby cancel, release and discharge this trust deed of record.”

This same trust deed was re-released on December 2, 1937? by Elmer Swearingen, successor trustee of Lewis Stephens, who certified that the trust deed, dated May 21, 1932, was, with the note accompanying it, fully paid, satisfied and discharged.

Following the recording of the deeds of conveyance of tracts I and II to Tillie Stephens, plaintiff continued to farm both tracts. On October 4, 1934, plaintiff entered into a written lease with Tillie Stephens. He paid her a yearly rent of half the corn and two fifths of small grain and $5 per acre cash rent. Plaintiff did not pay any taxes, insurance or upkeep on the premises and did not keep any books with regard to- such items. The arrangements under the lease continued throughout the balance of the life of Tillie Stephens.

On June 4, 1948, Tillie Stephens by a series of quitclaim deeds conveyed tracts I and II to herself and Walter C. Stephens as joint tenants. Tillie Stephens died June 13, 1948, nine days after the making and recording of these deeds. In 1949, by a series of deeds, a joint tenancy in tracts I and II was created in Walter C. Stephens and Betty S. Stephens, his wife.

Subsequent to the death of Tillie Stephens, plaintiff continued farming tracts I and II under the same arrangements had with her. He paid the rental to Walter C. Stephens until the management of the farm was taken over by Bloomington Farms Management Service. Then said farm came under the supervision of one Adams. Changes in the lease arrangement were discussed by Adams with plaintiff; and under date of October 25, 1951, a new lease was entered into between Adams as agent for Walter C. Stephens, as landowner, and plaintiff, as tenant. Plaintiff then operated under this new lease until October 30, 1952, at which time he was served with a notice of termination. Subsequently a lease was entered into between Walter C. Stephens and Harry Lyle Mehl for the term of one year from March 1, 1953.

At the time the suit was commenced on February 27, I953> Tillie Stephens and her husband, Lewis Stephens, Mona Stephens and her husband, Charles Stephens, Amelia Briggs, and Elmer Swearingen, the successor in trust, were deceased.

The witnesses for plaintiff consisted of himself and a neighbor, George Mehl. Plaintiff testified, on direct examination, that his sister, Tillie Stephens, agreed with him that if he would sign the deeds, exhibits F and H, he could thereafter continue to farm tracts I and II, take out his share as tenant, and she would apply the balance less taxes to payment of the mortgage debt to her and when the same was satisfied she would reconvey tract I to him and would divide tract II with him fifty-fifty. There is no testimony in the record to corroborate this agreement.

On cross-examination, when plaintiff was questioned regarding the same deeds, he testified as follows:

“Q. Now at the time you signed these deeds Exhibit F (9/1:3/33) and Exhibit G (3/9/34) and Exhibit H (3/24/34), you understood, did you not, that the family, all of you, were cancelling out the indebtedness that was due Tillie at that time?

A. That is right.

Q. That included whatever money she had coming from your father’s estate, the $2,500.00 that she had advanced and was a lien on Tract II.

A. That is right.

Q. And the money you owed her.

A. That is right.”

The findings of the special master must be allowed to stand unless it can be said that such findings are clearly against the manifest weight of the evidence. He was in a better position to judge as to the questions in dispute than we are. He saw the witnesses and heard them testify.

After considering all of the evidence in the record we believe the special master correctly found that the execution and delivery of both deeds in question was the cancellation, satisfaction and settlement of all indebtedness due from plaintiff and other children of Daniel R. Schwartzentruber to Tillie Stephens and other members of the Daniel R. Schwartzentruber family or their surviving spouses, and that the deeds in question were made and delivered pursuant to and as a part of a full settlement of all indebtedness that then existed between members of the Daniel R. Schwartzentruber family to and from each other.

We also concur with the special master that the weight of the evidence tends more reasonably to uphold the conclusion that the warranty deed, dated September 13, 1933, wherein plaintiff and other children of Daniel R. Schwartzentruber and their spouses conveyed tract II to Tillie Stephens, was in fact and was intended to be by the grantors therein a conveyance of the entire legal and equitable title of the grantors in tract II and was not intended to be a conveyance as additional security of any indebtedness due and owing from the grantors therein or any one or more of them to Tillie Stephens; that likewise the warranty deed, dated March 24, 1934, wherein plaintiff and his wife conveyed tract I to Tillie Stephens, was an absolute deed of the equitable and legal title of the grantors and not a conveyance of their interest therein as a security or additional security for any indebtedness due and owing from grantors therein to Tillie Stephens.

The testimony of all witnesses is void of any evidence of fraud or deceit on the part of Tillie Stephens in the making, execution and delivery of said deed. The special master was justified in finding that Tillie Stephens did not act falsely or fraudulently with intent to deceive plaintiff in the procurement thereof. We find nothing in the record to even suggest that fraud, undue or oppressive influence were used by Tillie Stephens.

The decree in this case reserved for future consideration the question of damages for wrongfully suing out the injunction. It was proper to make such reservation. Hillmer Co. v. Behr, 264 Ill. 568; Johnson v. McNellis, 228 Ill. 351; Poyer v. Village of Des Plaines, 123 Ill. 111; Wing v. Dodge, 80 Ill. 564.

In view of our conclusion it is unnecessary for us to consider other errors assigned and argued.

The decree of the circuit court of McLean County is affirmed.

Decree affirmed.


text:
    (No. 33826.
    Erich Hepner et al., Appellants, v. County Board of School Trustees of Henry County et al., Appellees.

      Opinion filed March 22, 1956.

      Brian & Wilson, and J. E. Richards, both of Toulon, for appellants.
    James H. Andrews, Harper Andrews, and Campbell Andrews, all of Kewanee, for appellee School District No. 229.
   Mr. Justice Davis

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Henry County affirming the orders of the County Board of School Trustees. The proceeding was brought under the provisions of the Administrative Review Act in accordance with sections 4B — 5 and 4B — 25 of the School Code. (Ill. Rev. Stat. 1953, chap. 122, pars. 4B — 5 and 4B — 25.) The orders of the County Board of School Trustees provided that the east one-half of the northeast one-quarter of section 5 be detached from the part of Non-High School District No. 194, of Henry County, which is Community Consolidated School District No. 231, and annexed to Community Unit School District No. 226 of Henry County, and that all of Community Consolidated School District No. 231, except this parcel of land, be detached from that part of the non-high school district which is Community Consolidated School District No. 231, and annexed to Community Unit School District No. 229 of Henry County.

The plaintiffs urge five grounds for reversal of the circuit court, the primary ground being the unconstitutionality of sections 11 — 18.1 and 4B — 25 of the School Code. A debatable constitutional question was raised, and we therefore assume jursdiction. Prohm v. Non-High School Dist. No. 216, 7 Ill. 2d 421.

The non-high school territory in question has boundaries coterminous with plaintiffs’ Community Consolidated Grade School District No. 231, and is bounded on the south and west by Kewanee Community Unit School District No. 229 of Henry County, on the north by Annawan Community Unit School District No. 226 of Henry County, and on the east by Neponset High School District No. 504 of Bureau County. The south boundary of Community Consolidated Grade School District No. 231, and of the part of the non-high school district in question, is separated from plaintiff Community Unit School District No. 230 of Henry County by a corridor consisting of sections 35 and 36 and part of section 26 of township 15 north, range 5 east of the 4th principal meridian of Henry County, which area is part of Community Unit School District No. 229.

Section n — 18.1 provides:

“If all the territory of the non-high school district of any county has not been annexed to some high school district maintaining grades nine to twelve, each inclusive, by June 30, 1953, it shall be automatically eliminated from the non-high school district on August 1, 1953, unless the county board of school trustees and the Superintendent of Public Instruction jointly find and certify on or before July 31, 1953, and on or before June 30 of each year thereafter that (1) the non-high school territory is adjacent to a district created by a special Act whose boundaries are required by such Act to be coterminous with some city or village or to a district maintaining grades one to twelve, each inclusive, and (2) has children in such territory who customarily attend the high school of such district, and (3) has no school district operating grades nine to twelve, each inclusive, to which such territory could be annexed without impairing the educational opportunities of the children of such territory and in such case the territory shall remain non-high school territory. However, any non-high school territory that the county board of school trustees and Superintendent of Public Instruction jointly find and certify on or before June 30, 1954, is adjacent to a district maintaining grades one to twelve, each inclusive, and has less than sixty high school pupils in average daily attendance during the school year 1953-1954, in public schools for whom tuition is paid, shall be automatically eliminated from the non-high school district on July 1, 1954, and any non-high school territory that the county board of school trustees and the Superintendent of Public Instruction jointly find and certify on or before June 30, 1954, is adjacent to a district maintaining grades one to twelve, each inclusive, and has sixty or more high school pupils in average daily attendance during the school year 1953-1954, in public schools for whom tuition is paid, shall automatically be eliminated from the non-high school district on July 1, 1956.

“When territory is eliminated from a non-high school district it shall be annexed by the county board of school trustees as provided in Section 4B — 25 of this Act. As amended by act approved July 13, 1953.” Ill. Rev. Stat. 1953, chap. 122, par. n — 18.1.

Section 4B — 25 of the School Code provides in part that when any territory is eliminated from a non-high school district by the provisions of section 11 — 18.1, the county board of school trustees of the county in which such territory lies shall within thirty days after such date hold one or more public hearings with respect to the attachment of such territory to one or more districts maintaining grades nine to twelve, inclusive; that the county board of school trustees shall give written notice of such hearing to each elementary school board in the territory affected and to each school board of any district adjoining said territory maintaining grades nine to twelve, inclusive, and cause the publication of such notice; that the notice shall describe the territory to be annexed and give the time and place of the hearing; that the county board of school trustees shall hold a hearing and annex the territory to the district “that they determine will best serve the interests of the pupils in the area and will best serve the educational welfare of the pupils in the area and to which the pupils of the underlying elementary school district normally attend high school, where possible;” and that order shall be entered annexing the territory not more than ten days after the hearing. Said section then provides: “If the former non-high school territory is annexed to a district maintaining grades one to twelve, each inclusive, the elementary district, or parts thereof, underlying the territory which is annexed shall automatically be detached from such elementary district and become a part of the district to which the territory is annexed.”

On July 22, 1953, the Superintendent of Public Instruction and the County Board of School Trustees of Henry County, jointly certified that all of the non-high school territory within Community Consolidated School District No. 231 is adjacent to Community Unit School District No. 229, a district maintaining grades one to twelve, inclusive, and has children in such territory who customarily attend the high school of such district, or of Community Unit School District No. 230, and has no school district operating grades nine to twelve, inclusive, to which such territory could be annexed without impairing the educational opportunities of the children of the territory.

Plaintiffs urge that section 11 — 18.1 of the School Code is so vague and uncertain that it violates due process and is therefore unconstitutional. They contend- that the joint certificate, stating that the territory did not adjoin a school district to which it could be annexed, continued the non-high status of such territory beyond 1953, and that if the territory was eliminated in 1954 without a further certificate, such territory could only have been eliminated as of August 1, 1953. We cannot agree with the plaintiffs’ contention in this respect. The statute plainly provides that if all of the territory of any non-high school district has not been annexed to some high school district maintaining grades nine to twelve, inclusive, by June 30, 1953, it shall be automatically eliminated from the non-high school district on August 1, 1953, unless the county board of school trustees and the Superintendent of Public Instruction jointly find and certify on or before July 31, 1953, and on or before June 30 of each year thereafter, that the non-high school district territory comes within the specifications enumerated in clauses (1), (2) and (3) of said statute, and in such case, the territory shall remain non-high school territory. In the case at bar, the joint certificate dated July 22, 1953, extended the existence of the non-high school territory in question to June 30, 1954. Inasmuch as no further joint certificate was filed by the County Board of School Trustees and the Superintendent of Public Instruction on or before June 30, 1954, and the non-high school territory in question had less than sixty high school pupils in average daily attendance during the school year 1953-54, in public schools for whom tuition was paid, the non-high school territory in question was automatically eliminated from the non-high school district on July 1, 1954. Under section 11 — 18.1, it became the duty of the County Board of School Trustees to then annex such territory to one or more adjoining districts maintaining grades nine to twelve, inclusive. We find, contrary to plaintiffs’ contention, that section 11 — 18.2 of the School Code, under the circumstances of this case, had no application.

Plaintiffs also contend that both sections 11 — 18.1 and 4B — 25 of the School Code are unconstitutional in that said sections delegate legislative power in violation of article III of the Illinois constitution. We have frequently held that the legislature may give an administrative body discretionary powers to decide an issue if it establishes standards under which that discretion may be exercised. (School District No. 79 v. County Board of School Trustees, 4 Ill. 2d 533; People ex rel. Duffy v. Hurley, 402 Ill. 562; Vallat v. Radium Dial Co. 360 Ill. 407.) The plaintiffs assert that section 4B — 25 does not furnish sufficient guide by which the board may determine to which district such territory should be annexed. They support such assertion with a line of cases beginning with Kenyon v. Moore, 287 Ill. 233, and ending with School District No. 79 v. County Board of School Trustees, 4 Ill. 2d 533.

In School District No. 79 v. County Board of School Trustees, 4 Ill. 2d 533, it was contended that section 4B — 4 was unconstitutional in that it did not constitute a sufficient guide by which the board could determine whether or not the petition for annexation should be allowed, and such contention was supported by the same line of cases beginning with Kenyon v. Moore, 287 Ill. 233. Section 4B — 4 provided that the county board of school trustees should 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, and in case non-high school territory is contained in the petition the normal high school attendance pattern of the children shall be taken into consideration.” (Ill. Rev. Stat. 1955, chap. 122, par. 4B — 4.) In that case we concluded that section 4B — 4 did not constitute an invalid delegation of legislative power, and we further found that Kenyon v. Moore, 287 Ill. 233, and the cases predicated upon it were restricted to hold merely that the legislature cannot give to an administrative body unlimited discretion to act when that discretion is not guided by standards under which it may be intelligently exercised.

Section 4B — 25 of the School Code provides, in part, that “the county board of school trustees shall hold a hearing and annex the territory to the district that they determine will best serve the interests of the pupils in the area and will best serve the educational welfare of the pupils in the area and to which the pupils of the underlying elementary school district normally attend high school, where possible.” Said provision of the statute furnishes standards under which the discretion of the county board of school trustees may be intelligently exercised. The following quotation from School District No. 79 v. County Board of School Trustees, 4 Ill. 2d 533, at page 537, was made pertaining to section 4B- — 4 and applies to section 4B — 25 : “It is to be admitted that these standards are general rather than specific in nature. However, it would be both impossible and undesirable for the legislature to draft rigid nondiscretionary standards which would embrace each and every school district boundary change, for conditions surrounding the changes are seldom the same. It is our conclusion that the specifications as to what evidence may be submitted and the spelling out of what matters may be considered by the board are as definite as can be formulated.” The majority of the cases cited by plaintiffs to support their contention are fully considered in School District No. 79 v. County Board of School Trustees, 4 Ill. 2d 533, and reference is made to that decision for further analyzation of such authorities.

Plaintiffs further contend that section 4B — 25 of the School Code makes no provision for the annexation of eliminated non-high school territory to a district maintaining grades one to twelve, inclusive, by the county board of school trustees, but rather, only provides for such annexation to a district maintaining grades nine to twelve, inclusive. We cannot agree with this contention. Said statute expressly provides: “If the former non-high school territory is annexed to a district maintaining grades one to twelve, each inclusive, the elementary district, or parts thereof, underlying the territory which is annexed shall automatically be detached from such elementary district and become a part of the district to which the territory is annexed.” If the plaintiffs’ contention in this respect were to be given credence, the above quoted section of the statute would be absurd. Construction of statutes leading to absurd consequences are to be avoided. People ex rel. Bodecker v. Com. Unit School District, 409 Ill. 526; People ex rel. Sergel v. Brundage, 296 Ill. 197.

Plaintiffs assert as a ground for reversal of the judgment that the County Board of School Trustees in attempting to follow the statute became so confused in the premises that their actions and orders were meaningless. We find no merit in this assertion. Under the circumstances in this case, the area in question became eliminated non-high school territory on July 1, 1954. On June 30, 1954, a petition was filed with the County Board of School Trustees, requesting among other things, that the territory in question be annexed to Community Unit School District No. 230. This petition, as later supplemented, was signed by 116 residents of the territory in question. Under sections 4B — 1 to 4B — 5, inclusive, of the School Code, school districts lying entirely within any county may be changed by detachment and annexation, by the county board of school trustees of such county, when petitioned by two thirds of the legal voters residing in the territory proposed to be detached from one district and annexed to another. Section 4B — 3 provides that no petition shall be granted under sections 4B — 1 or 4B — 2 unless the territory within any district so created or whose boundaries are affected by the granting of such petition shall, after the granting thereof, be compact and contiguous. Said petition was invalid, inasmuch as Community Consolidated School District No. 231 was separated from Community Unit School District No. 230 by the corridor above mentioned, which territory was part of Community Unit School District No. 229. On July 26, the date of hearing, pursuant to the notice of the County Board of School Trustees, under section 11 — 18.1 and 4B — 25 of the School Code, a petition was filed by certain voters residing within this corridor to detach said territory from Community Unit School District No. 229 and annex the same to Community Unit School District No. 230. However, prior to said hearing, four signers of this petition withdrew their names therefrom . Immediately before the hearing began, an instrument was filed for the purpose of reinstating three of the names so withdrawn. Even then the petition was signed by less than two thirds of the legal voters residing in said territory and such fact was conceded at the subsequent hearing. Therefore, this petition likewise was without legal force and effect. Various motions for continuances were made by the attorneys for plaintiffs and, pursuant to agreement of the attorneys for plaintiffs and defendant Community Unit School District No. 229, briefs were submitted prior to the decision of the case. The minutes of the meeting of said Board reflect that the hearing was well attended; that all persons desiring to be heard in connection with the question were heard; that prior to denying the motion for continuance, a poll of the Board was taken to determine if a quorum could be assembled for a further hearing on the following Friday night and that it was then determined that only three members of the board could attend such further hearing. The minutes likewise show that a recess of twenty minutes was granted during the hearing, upon request of plaintiffs’ attorneys, and others, to permit further discussion among the parties present; that evidence was received from representatives of the two adjoining community unit school districts and from the adjoining high school district relative to the financial status of said districts, the adequacy of facilities and the ability and willingness of said school districts to receive the high school students from the area in question; that the ex officio secretary of the Board submitted maps showing the districts involved and reported on the probable effects of the proposed changes. A show of hands of people having children of school age or preschool age indicated the following preference relative to high school attendance: Community Unit School District No. 230, twenty-seven; Community Unit School District No. 229, eight; and Community Unit School District No. 226, one. In only four of the school years beginning with 1935-36 and ending with 1953-54, had the high school attendance from the area in question in Community Unit School District No. 230 exceeded that at Community Unit School District No. 229. The minutes disclose an adequate and orderly hearing in which the County Board of School Trustees acted within its discretion in denying the continuances requested.

Plaintiffs have also argued that the County Board of School Trustees ignored the petition of residents of the territory in question and their choice as to which district annexation should be made, and failed to give precedence to such petition over the action initiated by the County Board of School Trustees under sections 11 — 18.1 and 4B — 25 of the School Code. These contentions are likewise unfounded. Carl Williams appeared at the hearing and requested that his farm be annexed to Annawan Community Unit School District No. 226. This was done. No one attending the hearing expressed a preference for annexation to Neponset High School District No. 504 of Bureau County, and no territory was annexed to that district. The only remaining district to which such territory could be legally annexed was Kewanee Community Unit School District No. 229. Under the provisions of the School Code, neither of these petitions was warrant or authority upon which the County Board of School Trustees could legally order that the territory described therein be annexed to Community Unit School District No. 230, and consequently, there was no valid petition on file before the County Board of School Trustees which could have been given precedence over the action required by that board under sections 11 — 18.1 and 4B — 25 or the School Code. Cf. Pritchett v. County Board of School Trustees, 5 Ill. 2d 356.

The judgment of the circuit court of Henry County sustaining the orders of the County Board of School Trustees is affirmed.

Judgment affirmed.