author: MR. PRESIDING JUSTICE KLUCZYNSKI

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Denman, Defendant-Appellant.
    Gen. No. 50,491.
    First District, First Division.
    February 18, 1966.
    Rehearing denied March 7, 1966.
    Richard J. Troy, of Chicago, for appellant.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. Roger Horsky, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE KLUCZYNSKI

delivered the opinion of the court.

This is an appeal from a bench trial robbery conviction. Defendant was senténced to a term of not less than two years nor more than ten years in the Illinois State Penitentiary. He appeals on the grounds that the state failed to prove that the taking of the property in question was done by the use of force as set forth in the statute (Ill Rev Stats 1965, c 38, § 18-1) and that the state failed to establish the identity of the defendant as the person who committed the crime. The following evidence was adduced at the trial.

Barbara Reavely, the state’s only witness, testified that on December 22, 1962, at 6:30 in the morning, she was awakened by two men in her bedroom standing beside her bed. Her husband was not at home. Only she and her eight-month-old baby were there. There was a night light on in the bedroom and some light coming in from the outside. One of the men, Robert Long, showed her a policeman’s badge and said that he was from the State’s Attorney’s office. Following Long’s command, she put on a robe and went into the living room. Long went back to the bedroom and began searching it while the other man, whom she identified as the defendant, stood watching her. The defendant Denman was five or six feet from her for the full time he was there. The shades were up in the living room and, because “day was breaking,” light came into the living room from the outside. When Den-man shouted “Don’t forget the bathroom,” Long began to search there. When she asked Long how he got in the apartment, he said “Shut up, bitch. Where is the money ?” Whereupon he pulled out a gun.

During one of the conversations she had with Long, he told her that he had her husband and her keys, and that was how he got into the apartment. The men were there about twenty minutes. When they left she found that the baby’s mattress was turned up and all the covers were disturbed. Her coin purse with about $15 was missing. She did not call the police because Long had told her he was going to phone that evening. Subsequently, she had some phone conversations with Long wherein he attempted to force her to raise a $25,000 ransom for the safe return of her husband. This particular maneuver by Long resulted in his arrest.

In February of 1963, Barbara Reavely looked at about fifty pictures at police headquarters and recognized one as being that of William Denman, the defendant. On February 15, 1963, she identified him in a police lineup as being the other man who robbed her on December 22, 1962.

Upon cross-examination Barbara Reavely stated that Long displayed the gun only once; that neither man tried to molest her; that about six or seven men were in the lineup when she picked out the defendant; that she told the police after the incident that the man who accompanied Long was 5' 8", light complexioned and had sandy hair; that she could see the defendant “very well” since it was “daylight” and he stood only five or six feet from her for about twenty minutes; that the picture of Den-man that she saw prior to picking him out of the lineup was a “good likeness” of the man in her apartment, and that she recognized him immediately.

Counsel for defendant then introduced into evidence the description of the men given to the police by Barbara Reavely after the incident. The man with Long was described as being a 5' 8" male Negro of light complexion. There was no mention of sandy hair or any other particulars.

The state pointed out for the record that Denman is a 5' 9" light complexioned Negro with sandy hair.

Defendant testified that at.6:30 a. m., on December 22, 1962 he was at his sister’s house (Naomi Denman) and that he and his wife slept there the night of December 21 and the early morning of December 22 because he had been painting rooms at the house. He got up about 5:30 a. m. on December 22, made coffee, and awakened his sister Naomi who left for work at about 6:00 a. m. and was not there when he left. He and his wife then went to another sister’s house. This account of his activities was corroborated by his wife. Naomi testified she saw defendant painting at her house on December 21 when she left for work at 6:00 p. m. She returned about 2:15 or 2:30 a. m. and slept in the living room. Her brother woke her up when he left at 8 or 8:30 a. m.

We find no merit to defendant’s contention that there was not sufficient force shown to constitute robbery. Robbery is defined by statute as follows:

A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force. (Ill Rev Stats 1965, c 38, § 18-1.)

In the instant case, two men surprised the victim in her bedroom at dawn. While searching her apartment, one of the men brandished a gun, told her to “Shut up, bitch,” and told her they had her husband. They began going through the house after asking her where the money was. Under such circumstances it was reasonable for her to believe there was a threat of the imminent use of force and that force would be used to overcome resistance.

Defendant argues, however, that at no time did she testify that she was in fear of her personal safety or aware of the fact that the men were not bona fide police officers. Therefore, defendants contend, the crime here was theft by deception under Ill Rev Stats 1965, c 38, § 16-1 (b). In other words, the defendant argues that the removal of Mrs. Reavely’s property was accomplished through the device of posing as policemen. Although the mere pretense of legal authority, for example, extortion by threats of prosecution, will not constitute robbery where there is no showing of force, if a threat to accuse, arrest, or prosecute under such pretense of authority is supplemented by force, actual or constructive, it is sufficient to support a charge of robbery. People v. Bodkin, 304 Ill 124, 136 NE 494 (1922). See 27 ALR 1299 for other cases on this subject. In Bodkin, the court upheld a conviction of robbery where defendant and another went in the evening to the rooms of the prosecuting witness, who conducted a soft drink parlor and lunchroom, exhibited a government star, claimed to be government men, and accused the witness of illegally selling liquor. They threatened to take him to the Federal building unless he paid $200. The reviewing court held that, although the jury had determined that the defendant and his partner did not display a gun, as alleged by the state, the circumstances were such that the victim had reasonable grounds for believing that physical means would be employed to enforce the threat. The Bodkin case, as illustrating the threat of the imminent use of force, was explicitly referred to in the committee comments to the statutory provision on robbery. See SHA ch 38, § 18-1, Committee Comments. We consider the case dispositive of the question of force here.

We likewise find no merit in defendant’s contention that the state failed to establish the identity of the defendant as the person who committed the crime. The state’s witness, Barbara Reavely, was five or six feet from the defendant for about twenty minutes in the “daylight” as she described it. The testimony of one witness alone, if it is positive and the witness credible, is sufficient to convict even though the evidence is contradicted by the accused. People v. Miller, 30 Ill2d 110, 113, 195 NE2d 694 (1964). The fact that a general description was given to the police, and then embellished at the trial, is not sufficient to shake the identification where the trial court is convinced that the witness had a good opportunity to observe the defendant and the witness is generally forthright and candid. See People v. Young, 65 Ill App2d 185, 213 NE2d 146 (1965). In People v. Williams, 12 Ill2d 80, 145 NE2d 29 (1957) the court upheld a conviction of armed robbery where the only witness was a bus driver who observed the defendant as he was boarding the bus. The witness had no opportunity to further observe the defendant during the robbery since he was forced at gunpoint to look in the other direction. In that case the court noted that the defendant’s alibi involved some contradiction. In the instant case the lower court placed no credence in defendant’s alibi, finding that testimony regarding it was contradictory.

Defendant was accorded a fair hearing. The trial judge, as trier of the facts, found the proof sufficient according to law, to establish the crime and defendant’s involvement therein. We find no reason to set it aside. The judgment of conviction is affirmed.

Affirmed.

MURPHY and BURMAN, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE BURMAN

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Raymond Pugh, Defendant-Appellant. People of the State of Illinois, Plaintiff-Appellee, v. Jessie James Pugh, Defendant-Appellant.
    Gen. No. 50,116.
    First District, First Division.
    February 18, 1966.
    Richard H. Devine, of Chicago, for appellants.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and William J. Martin, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The two defendants were charged in separate indictments with the unlawful possession of narcotic drugs, and the indictments were consolidated for trial and for appeal. After a bench trial the court found each of the defendants guilty as charged, and sentenced them to terms in the Illinois State Penitentiary. Raymond Pugh was sentenced to a term of not less than two years nor more than two years and one day; and Jessie James Pugh was sentenced to a term of not less than five years nor more than ten years.

On this appeal, the defendants question only the legality of the searches by which the police obtained the narcotics introduced against them at their trial. In the trial court, Raymond Pugh filed a petition to suppress evidence, and Jessie James Pugh filed a motion to quash the complaint for a search warrant and to suppress evidence. Both motions were denied by the trial judge, and these rulings are the subject of this appeal.

On August 29, 1963, a search warrant was issued by a judicial tribunal upon a complaint in which the informer, who gave his name as Joe Williams, stated under oath that narcotic drugs were concealed by Jessie Pugh in a certain apartment on the third floor of a building at 1809 East 67th Street in Chicago. The informer stated that he had purchased two tinfoil packages of heroin from Jessie Pugh at that address on August 28th. The warrant was executed on August 30th. When the officers were admitted into the apartment, they identified themselves as police officers, showed the search warrant to Jessie Pugh, and began their search of the apartment. About fifteen minutes later, Raymond Pugh rang the doorbell and, at the direction of the officers, was admitted to the apartment. He was then searched, and 42 foil packages containing heroin were removed from his pants pocket. Raymond Pugh was arrested; and the search of the apartment was resumed. Eventually, an envelope containing heroin was discovered concealed in a hi-fi set within the apartment. All of the narcotics was admitted into evidence at the trial, over the objection of the defendants.

The attack by the defendant Jessie Pugh upon the legality of the search of the apartment is grounded upon the fact that the informer, who filed the complaint for a search warrant and who appeared before the judge issuing the warrant, signed a fictitious name. It is alleged that this constitutes grounds for quashing the complaint, and for suppressing the fruits of the search. In support of this contention, defendant argues that in People v. Williams, 27 Ill2d 542, 190 NE2d 303, the Supreme Court held that the police, in applying for a search warrant, can allege as grounds for probable cause information received by them from an informer who had given reliable information in the past. It is argued that where the police can thus obtain a search warrant and yet conceal the identity of their informer, they cannot do so by means of a sworn complaint signed by the informer under a fictitious name. It thus appears that the defendant’s objection is not to the fact that the police concealed the identity of the informer, but to the manner in which the identity was concealed. We see no merit in such a distinction. If the police themselves can obtain a warrant by alleging the receipt of information from an informer, without revealing that informer’s identity, the warrant can be no less valid where the informer himself appears before the court to present his allegations, albeit under a false name.

It has been held in the federal courts that a fictitious name signed to a complaint for a search warrant is not a ground for quashing the warrant where, as here, the person did in fact appear and swear to the complaint before a proper judicial tribunal, and where the affidavit discloses facts which, if true, were ample to support a search warrant. United States v. McKay, 2 F2d 257. In Hirschfeld v. United States, 54 F2d 62, the court held that the fact that the informer misspelled his name, or even wrote another name, will not affect the validity of the warrant if in truth he signed and swore to it, provided the magistrate had reasonable grounds for issuance of the warrant (54 F2d at 63).

In People v. Mack, 12 Ill2d 151, 145 NE2d 609, the defendant was convicted of the unlawful possession of narcotic drugs. As in the instant case, the narcotics introduced against the defendant at his trial were obtained during a search of an apartment pursuant to a search warrant issued upon the complaint signed by an informer using a fictitious name. The defendant filed a motion to suppress the narcotics. Although our Supreme Court, in affirming the conviction, noted that the defendant did not contend the fictitious signature rendered the search warrant void, it nevertheless cited the McKay case for the proposition that a fictitious name signed to the affidavit is no ground for quashing the search warrant (12 Ill2d at 163, 164).

In support of his motion to suppress the narcotics removed from his person when he entered the apartment, the other defendant, Raymond Pugh argues that he was first searched and then arrested without probable cause. Section 108-9 of the Code of Criminal Procedure (Ill Rev Stats c 38, § 108-9 (1963)) now provides:

§ 108-9. Detention and Search of Persons on Premises.
In the execution of the warrant the person executing the same may reasonably detain to search any person in the place at the time:
(a) To protect himself from attack, or
(b) To prevent the disposal or concealment of any instruments, articles or things particularly described in the warrant.

We feel that under the same rationale as set forth in the statute the police while engaged in the search had reasonable grounds to search Raymond Pugh as well. We agree with the State that the execution of search warrants in narcotics cases is a risky business at best, and unless the police search all persons present on the premises they endanger both themselves and the search they are making. Furthermore, the entry of the defendant onto premises where the police have reason to believe narcotics are concealed provides further grounds for his search. The United States Constitution prohibits unreasonable searches (US Const amend IV); the search of Raymond Pugh under the circumstances of this case cannot be so classified.

The judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


text:
    Martin Kelly, Plaintiff-Appellant, v. Chicago Transit Authority, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 50,224.
    First District, First Division.
    February 18, 1966.

      Meyer Miller, of Chicago, for appellant.

      William J. Lynch, William S. Allen, Jerome F. Dixon and C. Vernon Thompson, of Chicago, for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This is an action for personal injuries and loss of earnings which plaintiff allegedly suffered as a result of an accident involving the Chicago Transit Authority bus in which he was riding on April 22, 1957. Plaintiff moved for a directed verdict at the close of all the evidence, but his proffered instruction to this effect was refused. The jury returned a verdict in favor of the defendant, and plaintiff has brought this appeal, contending that his motion for a directed verdict should have been granted, or in the alternative that he is entitled to a new trial because the misconduct of counsel and erroneous rulings by the trial court deprived him of a fair trial.

In support of his motion for a directed verdict, plaintiff argues that no reasonable mind could disagree that defendant’s driver was negligent; and that this fact, coupled with the absence of any evidence tending to establish that the plaintiff was guilty of contributory negligence, and the existence of evidence that plaintiff was in the exercise of due care and caution for his own safety, required the court to grant the motion for a directed verdict as to the issue of liability.

If plaintiff, at the close of all the evidence moves for a directed verdict, the trial court must consider all of the evidence in its aspect most favorable to the defendant, together with all reasonable inferences to be drawn therefrom, and if when so considered, there is any evidence standing alone and considered to be true, together with the inferences that may legitimately be drawn therefrom which fairly tends to support the defendant’s defense, the court should not direct a verdict in favor of the plaintiff. Johnson v. Skau, 33 Ill App2d 280, 284, 179 NE2d 40. We have examined the record carefully, and conclude that the trial court was correct in not taking the question of liability from the jury, in that there were questions of fact for determination by the jury.

Plaintiff contends that counsel for the bus company deprived him of a fair trial by injecting into the case the issue of whether or not plaintiff was in fact a passenger on the bus, whereas that fact must be deemed admitted by the defendant by its failure to deny it in the answer.

Paragraph 2 of the complaint specifically alleges that plaintiff was a fare paying passenger on the bus in question on April 22, 1957. Defendant’s answer denied that plaintiff was in the exercise of due care and caution for his own safety; denied each and every allegation of paragraphs 4 and 5 of the complaint (not here material); admitted service of notice of plaintiff’s claim; denied that the collision in question or any injuries of the plaintiff were due to the negligence of a CTA employee; and denied that the plaintiff was injured or damaged in the manner, to the extent, or in the amount alleged. Nowhere in the answer, however, did defendant deny plaintiff’s specific allegation that he was a passenger on the bus.

Section 40 of the Civil Practice Act (Ill Rev Stats c 110, § 40 (1968)) provides as follows:

§ 40. Pleadings to be specific. (1) General issues shall not be employed. Every answer and subsequent pleading shall contain an explicit admission or denial of each allegation of the pleading to which it relates.
(2) Every allegation, except allegations of damages, not explicitly denied, is admitted, unless the party states in his pleading that he has no knowledge thereof sufficient to form a belief, and attaches an affidavit of the truth of the statement of want of knowledge, or unless the party has had no opportunity to deny.
(3) Denials must not be evasive, but must fairly answer the substance of the allegation denied. . . .

It is clear that, in this case, the fact that plaintiff was a passenger on the bus must be deemed admitted by the defendant, and plaintiff’s counsel had a right to consider this not to be an issue in the case. It was therefore highly improper for counsel for the CTA to remark to the jury, in his closing argument, “But now let me tell you something, and I may be a little harsh in my statement here. I don’t believe this man Kelly was ever on that bus.” The objection by plaintiff’s counsel was erroneously overruled, and counsel for the CTA made other remarks along this line. In closing argument by plaintiff’s counsel, this error was compounded when the following colloquy occurred in the presence of the jury:

Mr. Cronin [plaintiff’s counsel]: Ladies and gentlemen, I am sorry I irritate counsel by coming in this courtroom. But there is one thing that irritates him more. That is part of the record that states the CTA filed an answer in this case many years ago by its then attorney, and admitted that Kelly was on the bus. Now counsel would have you believe that he wasn’t there. You notice it is admitted by counsel when we made opening remarks to you yesterday. He said, I believe, that—
Mr. Thompson [counsel for defendant] : If your Hon- or please, I don’t wish to interrupt—
Mr. Cronin: Then don’t.
Mr. Thompson: Now I will—
Mr. Cronin: Don’t bark at me.
Mr. Thompson: —unfitting to the jury—
The Court: The Court will look at the pleadings.
Mr. Thompson: Did we admit that he was a passenger on our bus ?
The Court: Just a minute, now, gentlemen. One denies at the time and place in question — the plaintiff was — Paragraph No. 4 and the subparagraph thereof —admits to service — denies the collision in question and any injuries. I see no admission—
Mr. Cronin: Notice now Paragraph 2 of the claim. It is not answered.
The Court: Now, gentlemen, I see—
Mr. Cronin: There is a rule in pleadings, if it is not denied—
Mr. Thompson; It is improper to argue—
The Court: That is correct. It is improper to argue pleadings. There is no direct denial. Let’s get that much straight, as I—
Mr. Cronin: There is no denial that Mr. Kelly was on the bus.
The Court: There is no admission—
Mr. Cronin: —and no denial either.
The Court: Let’s leave it at that. No admission and no denial.

We are of the opinion that counsel and the trial court improperly left the jury with the erroneous impression that the issue of whether or not plaintiff was on the bus was for their consideration. We must conclude that this error, to which plaintiff’s counsel duly objected, was so prejudicial as to deny plaintiff a fair trial.

Plaintiff also charges that the offer by counsel for the CTA to introduce a police report of the accident as his own exhibit was improper and prejudicial. The record' reveals the following discussion during the cross-examination of the bus driver:

Q. Now, how many people were transported from the scene by ambulance or police vehicle?
A. One.
Q. And what was the name of that person ?
A. I do not know.
Q. Do you know what kind of ambulance came to the scene?
A. Fire Department Ambulance.
Q. Was that Fire Department Ambulance No. 8?
Mr. Thompson: I think possibly I can shorten this somewhat if your Honor pleases.
Mr. Cronin: Thank you, but counsel, let me conduct—
The Court: I can’t hear both.
Mr. Thompson: I have objected to the police report going into evidence in this particular case and indicate for the record. If he wishes to have the witness use the police report, I have no objection to his using it and it may be offered, I’ll make it my exhibit.
Mr. Cronin: The police report is not offered and may I proceed without counsel interrupting.
The Court: All right. Proceed.

The police report of the accident was clearly inadmissible, and the conduct of counsel in offering such reports into evidence has been repeatedly condemned. Smith v. Johnson, 2 Ill App2d 315, 120 NE2d 58; Paliokaitis v. Checker Taxi Co., 324 Ill App 21, 57 NE2d 216. Defendant’s counsel improperly made it appear to the jury that plaintiff was keeping the police report from their consideration, thereby putting plaintiff’s counsel in an unfair position before the jury. Such conduct by counsel is wholly indefensible and in our judgment was prejudicial to the plaintiff.

The defendant argues that plaintiff’s failure to make a formal objection to the comment about the police report or to move for a mistrial waives that issue for purposes of appeal. Under the circumstances of this case, we do not agree. Plaintiff’s counsel chose to register his objection to the improper remark by suggesting that he was not offering the police report and that he should be permitted to conduct his own cross-examination of the bus driver, rather than by making a formal objection before the jury. This fact, taken with the highly prejudicial nature of the remark by opposing counsel, is in our view sufficient to preserve this question for purposes of appeal.

Plaintiff has alleged other errors in the conduct of the trial, but because the errors hereinabove discussed necessitate a new trial of this cause those further allegations need not be considered.

The judgment of the Circuit Court is reversed and the cause remanded to proceed with a new trial consistent with this opinion.

Reversed and remanded.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Samuel Lee House and Burrell Caston, Junior, Defendants-Appellants.
    Gen. No. 50,257.
    First District, First Division.
    February 18, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE KLUCZYNSKI

delivered the opinion of the court.

Defendants, Samuel Lee House and Burrell Caston, Jr., were convicted in a bench trial of armed robbery and sentenced to the Illinois State Penitentiary for a term of three to ten years and two to ten years respectively. The reasons given for this appeal are that defendants were not found guilty beyond a reasonable doubt and that they did not receive a fair trial because hearsay testimony was admitted during the trial which was especially prejudicial in view of the fact that the declarant was no longer available for cross-examination.

From the record, we find the evidence was as follows: Police officer Reed testified that on May 4, 1964 he and his partner were patrolling, in a police car, the vicinity of 1542 East Marquette Road in Chicago. They observed a cab in the middle of the street facing toward them and when they drew close, the cabdriver yelled: “Help, help, they robbed me.” They came abreast of the cab and both officers jumped out of their car. Defendant Caston took off around the front of the cab into a yard at 1542 East Marquette. Defendant House was holding the driver around the neck. Reed took after Caston and, upon apprehending him, brought him back to the cab. His fellow officer was holding a tile or linoleum knife with a curved end in his hand. The driver was bleeding and “he was hollering ‘They robbed me, they’re trying to kill me.’ ” When Reed’s partner asked what was going on, the driver said “They’re trying to rob me.” The driver then pointed to Caston saying that he had $2.40 in his pocket. Reed found $2.40 in Caston’s possession. At that time Caston stated that he wasn’t trying to rob the driver but that he was taking the money “they paid him.” He accused the driver of being drunk and acting crazy. At the police station about an hour or hour and a half later, when questioned in the presence of the defendants, the driver said he picked up Caston and House at 63rd and Cottage Grove Avenue. They asked to be driven to 59th and Greenwood and when arriving there directed him to take them to “66th and Marquette.” After arriving “there” he was told to drive a little “piece” down the street to a driveway where they started to rob him. At the station Reed said the defendants again charged the driver with being drunk and said they had just got in his cab and “was fixing to pay him to get out.” The driver suffered a laceration over the left eye and on the neck. When asked whether the driver told how much money was taken from him, Reed answered that he said $2.40 and that that amount was recovered from Caston’s pocket. On cross-examination Reed was asked whether he knew if the cabdriver had any more money on his person besides the $2.40. Reed said the driver had some money in his shoe and some in a little pocket “because he stated he had been stuck up seven or eight times.” The driver died of a heart attack prior to the trial and Reed’s partner was on vacation and unavailable at the trial.

Caston, in defense, testified that he and House got into the cab at 51st and Cottage streets, directed the driver to take them to 1520 East 66th Street [also known as Marquette Road] ; that when they approached the corner of 66th and Stony Island the driver became suspicious and stopped and asked for $1.50 fare; that he gave the driver $2 and when he discovered that they were not at their destination, demanded the money back; that the driver got out of the cab, fell, got to his feet; that he lost his temper, grabbed the driver “to give me my money back and he [the driver] slapped House and hit the corner of that car. . . .” When Caston told him to give him back his money, the driver started fighting and “he throwed the money on the seat and I picked it up.” The police car pulled up. The driver kicked the door and yelled “Help, they trying to rob me.” He had no intention of robbing the driver. House testified the same as Caston with regard to the entering of the cab and the place of destination. He further said that when we were “pretty close” to the address he “raised up the seat, the back of the seat.” The cabdriver got “all nervous” and told him to get back in his seat. House was only trying to locate the address. The driver then stopped, wouldn’t go any farther, ordered them out of the cab and wanted Caston to pay the fare. Caston paid him $2. The driver and Caston got into an argument and scuffle. “I mean it was a regular riffing there and so I didn’t know what was going on and so I just put the knife on his neck like that.” He wasn’t trying to hurt him. He was trying to keep them from hurting each other. The officers then pulled up. It was after defendants were insisting upon the money being returned, since the driver wasn’t taking them to their destination, that House guessed that the driver must have dropped the money on the seat and Caston stooped down and picked it up. When asked whether the driver dropped any more than the fare, House said that he might have in the scuffle. He said there couldn’t have been too much [more than the fare] “because we didn’t have any more.” He had no intention to rob the cabdriver. On cross-examination House said he had put the knife to the driver’s neck while in the cab and when arrested he was outside the cab. The knife was recovered under the cab where he threw it. He was familiar with the neighborhood and lived a block away from where the cab was stopped.

Initially, we pass upon the defendants’ contention that the proof failed to establish their guilt of armed robbery beyond a reasonable doubt. In People v. Griffin, 48 Ill App2d 148, 153, 198 NE2d 115, 117 (1964) we cited cases and expressed the principle that a reviewing court will not reverse á judgment of conviction on the ground that the evidence is insufficient to sustain the finding of guilty unless there is a reasonable and well founded doubt of the guilt of the accused and the finding is palpably contrary to the weight of the evidence. We also said that the credibility and weight to be given to the testimony is a question for the trial court, and this court will not substitute its judgment for that of the trial court. The trial judge heard the testimony, saw the witnesses, observed their demeanor on the stand, and was in a better position than this court to determine the weight and credibility to be given to the testimony. Furthermore, the undisputed facts are that defendants hired a cab to be driven to a destination not the home of either, yet one block from where House lived; that they were involved in a quarrel with the driver and, although they claimed originally to have had $2, $2.40 was admittedly found in Caston’s pocket; that the cabdriver knew the exact amount taken; that the money passed after House had placed a linoleum knife against the driver’s head and held him by the neck; that the cabdriver yelled for help saying he was being robbed; that Caston took off at the approach of the police and House threw the knife under the cab; and that the driver suffered lacerations on the head and neck. The defendants’ versions were somewhat contradictory and the court did not accept them. There is no question that the victim gave up money if not through force then to say the least, by the threat of imminent use of force. (Ill Rev Stats 1965, c 38, § 18-1.) The finding of guilty was not so unreasonable and palpably contrary to the weight of the evidence as to justify a reversal on those grounds.

Defendants further seek a reversal alleging that they did not receive a fair trial in that hearsay testimony was admitted. First, they say, the court erred in allowing officer Reed to testify to the cabdriver’s declarations on the scene although the charges were denied by the defendants. They say these were hearsay and inadmissible especially in view of the fact that the accuser did not and could not testify. We believe People v. Poland, 22 Ill2d 175, 180, 181, 174 NE2d 804 (1961) disposes of this issue. The court held that there has emerged, as a recognized exception to the hearsay rule, the principle that, under certain conditions, what have been variously characterized as “spontaneous declarations” or “excited utterances” are properly admissible. The court cited 6 Wigmore, Evidence, 3d Ed, sec 1747 and accepted the following quotation from Showalter v. Western Pac. R. Co., 16 Cal2d 460, 106 P2d 895, 899: “When a declaration is made under the immediate influence of the occurrence to which it relates and so near in time- as to negative any probability of fabrication, said declaration is admissible.” Three factors are necessary to bring a statement within this exception to the hearsay rule: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. People v. Poland, p 181. These requirements were fully satisfied regarding these statements of the victim at the scene and the time of arrest and the court did not err in admitting them.

The defendants’ contention that the statement made by the victim some one hour to one hour and a half later at the station, and which accusatory part thereof was denied by the defendants, does not, in our opinion, fall within the above stated exception. But we do not believe the defendants were prejudiced thereby. As we point out, the undisputed facts and the testimony exclusive of the victim’s statement at the station is sufficient to sustain the trial court’s finding of guilty. And as it has often been held, where the court is the trier of the facts, we must presume that the court considered only competent evidence in reaching its decision. People v. Cox, 22 Ill2d 534, 539, 177 NE2d 211 (1961). It is only when the record affirmatively indicates that the trial judge considered incompetent evidence prejudicial to the defendant that we will reverse. People v. Grodkiewicz, 16 Ill2d 192, 200, 157 NE2d 16 (1959); People v. Smith, 55 Ill App2d 480, 488, 204 NE2d 577 (1965).

The judgment of conviction is therefore affirmed.

Affirmed.

MURPHY and BURMAN, JJ., concur.


text:
    Rosewood Corporation, an Illinois Corporation, Plaintiff-Appellee, v. Illinois Bell Telephone Company, a Corporation, and Sidney R. Olsen, Registrar of Titles, and County of Cook, a Municipal Corporation, Defendants-Appellants.
    Gen. No. 50,341.
    First District, First Division.
    February 18, 1966.
    Rehearing denied March 28, 1966.

      Sidley, Austin, Burgess & Smith, of Chicago (Kenneth F. Burgess, James E. S. Baker, Henry A. Preston and George A. Platz, of counsel), for appellant, Illinois Bell Tel. Co.
    Moses and Theodore J. Levitan, of Chicago, for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This suit for a declaratory judgment concerns a dispute between the Illinois Bell Telephone Company and the Rosewood Corporation, the owner of a parcel of real estate in Chicago, as to which of the parties is obligated to pay the costs of removing telephone equipment from the property. The case turns on the question of whether Rosewood is bound by an agreement under which a prior owner of the property obligated itself to reimburse Bell for such expenses. It is the position of Rosewood that it is not so bound because that prior owner had registered the property under the Torrens Act, and there was no registration of the agreement either by the prior owner or by Bell. There is no issue as to any material fact, and both parties moved for summary judgment in the trial court. The motion of Rosewood was granted, and Bell appeals.

The roots of this controversy reach back over forty years. In 1922, Bell and the Commonwealth Edison Company jointly erected poles on the property. Written permission to do so was obtained at the time from the then owner of the property, and from the tenant. In 1923, the owner of the property registered it under the Torrens Act, but gave no notice of this fact either to Bell or to Commonwealth Edison. In 1925, Bell installed underground conduit across the property. In 1926, Bell and the then owner of the property entered into a written agreement which grants Bell “the right and easement to operate, maintain and renew its telephone equipment” on the property, and further provides as follows:

The said Illinois Bell Telephone Company hereby agrees that upon sixty (60) days’ written notice, from the undersigned, its successors and assigns, it will rearrange or remove its equipment located and maintained as above set out; provided, only, that the undersigned, its successors and assigns, will compensate the said Illinois Bell Telephone Company upon demand at the completion of such rearrangement or removal, for such expenses as shall be incurred by the Illinois Bell Telephone Company in connection with such rearrangement or removal of said equipment.

This agreement was never registered in Torrens.

Subsequent to the agreement Rosewood acquired the property in question by deed which conveyed said lot together with six adjoining vacant lots and the Registrar of Titles issued its Owner’s Duplicate Certificate of Title dated September 25, 1962, showing fee simple title to said lot in plaintiff, subject only to taxes, building restrictions, etc., without notice of the existence and terms of the aforementioned agreement. In 1963, Rosewood wished to utilize the property for purposes of real estate development, and requested Bell to remove its equipment. Bell demanded payment of the costs of the removal in the amount of $3,445.43 under the terms of the agreement, but Rosewood denied that it was bound thereby. In anticipation of litigation of the issue, and to facilitate the use of the property by the owner, the parties entered into an escrow agreement pursuant to which Rosewood deposited the costs of removal and Bell removed the equipment immediately. A further provision of that 1963 escrow agreement read as follows:

7. Bell agrees that if upon termination of said proposed litigation by way of final judgment, order or decree entered in the Circuit Court of Cook County, Illinois, (or other court of general jurisdiction) it shall be found that Rosewood’s title to said premises is not subject to any rights in Bell, then upon demand of Rosewood, Bell will promptly return to Rosewood said sum of $3445.43.

Rosewood brought this suit for a declaratory judgment in the Circuit Court of Cook County, and the summary judgment and this appeal followed.

Preliminarily, we are faced with a motion by Rosewood filed in this court to dismiss the appeal on the grounds that Bell waived its rights to appeal by the above language contained in the 1963 escrow agreement. The motion was taken with the case.

In support thereof, Rosewood argues it is settled law that parties to litigation may, in advance thereof, waive rights of appeal, waive errors or otherwise give up rights of appeal from a lower court. Rosewood further argues that the decision of the Circuit Court was a final judgment; that it was the intent of the parties that Bell would not appeal a final judgment of the Circuit Court against them; and that if the clause of the escrow agreement is construed otherwise, it is without any significance whatever. Bell argues that if, under Illinois law, a party can waive his right to appeal at all, it must be done by clear and unequivocal language so providing. It is suggested that the words, “final judgment” are susceptible to a variety of interpretations, and that such language is not sufficiently clear and unequivocal to justify depriving a party of his right to appeal. It is further argued that such a construction of the agreement would be unfair, because Rosewood is not similarly prohibited from appealing an adverse decision.

In our view, the use of the words “final judgment” in this agreement was intended to mean the final adjudication of the rights of the parties, which would include the exercise or expiration of the right to appeal. If a waiver of the right to appeal had been intended, the parties could have explicitly so provided; or they could have provided that Bell would pay over that amount upon the entry of “judgment” in the Circuit Court, as opposed to “final judgment.” The word “final” in the agreement must have been intended to have some effect. If the parties had intended to prohibit Bell’s right of appeal, they could have used language similar to that used in the agreement in the Michigan case cited by Rosewood, Hoste v. Dalton, 137 Mich 522, 100 NW 750, which was: “If any question should hereafter arise between the parties hereto as to the construction and enforcement of this agreement, the same shall be submitted for decision to this court [the agreement was entitled in the circuit court for the county of Wayne] and its decision shall be final.” 100 NW at 751. (Emphasis added.) We conclude that Bell did not waive its rights of appeal by virtue of the language of the escrow agreement.

Turning to the merits, we find that section 40 of the Torrens Act (Ill Rev Stats c 30, § 84 (1963)) provides in relevant part as follows:

The registered owner of any estate or interest in land brought under this Act shall, notwithstanding any rules of the common law to the contrary except in cases of fraud to which he is party, or of the person through whom he claims without valuable consideration paid in good faith, hold the same subject to the charges hereinabove set forth [not here material] and also only to such estate, mortgages, liens, charges and interest as may be noted in the last certificate of title in the Registrar’s Office and free from all others except:
(1) General taxes for the calendar year in which the certificate of title is issued, and special taxes or assessments which have not been confirmed.
(2) Such right of appeal, writ of error, right to appear and contest the application, and action to make counter claim as is allowed by this Act.

From this language, it is clear that if Bell’s agreement with the former owner of the property is deemed to convey to Bell any variety of interest in the land, it is unenforceable against Rosewood because it was not duly registered. The exception labelled (2) in the portion of § 40 of the Torrens Act quoted above does not apply here because § 27 of the Torrens Act (Ill Rev Stats c 30, § 71 (1963)) prohibits any person from asserting any interest or right in or lien or demand upon land registered in Torrens more than two years after the entry of the order or decree by which the land was registered.

Bell urges that the agreement signed by it with the former owner of the property did not convey to Bell any interest in the land, but instead constituted the granting of a “license.” This contention is made despite the fact that the agreement itself purports to grant to Bell a “right and easement” in the property. We conclude, however, that under the circumstances of this case this agreement can only be construed to have conveyed to Bell some estate in, charge upon, or interest in the property. Bell’s failure to register its interest, therefore, precludes it, in the absence of fraud, from enforcing it against a subsequent purchaser, under the statutory language quoted above; and there is no allegation of fraud in this case.

Bell argues that the open and adverse presence of its equipment on the property constituted constructive notice to Rosewood that Bell possessed some rights in the property; and that an inspection of the property by Rosewood before purchasing it, followed by an inquiry into Bell’s rights, would have disclosed to Rosewood the existence of this agreement. Plaintiff concedes that the two telephone poles, together with the supports therefor and wires strung thereon were visible, and Bell admits that the underground cables and equipment were not visible. Bell cites Ambrosius v. Katz, 2 Ill2d 173, 117 NE2d 69, and directs our attention to the following language in the opinion of our Supreme Court in that case:

A purchaser is bound to inquire of the person in possession by what tenure he holds and what interest he claims in the premises. It is well settled that whatever is sufficient to put a party on inquiry is notice of all facts which pursuit of such inquiry would disclose, and without such inquiry no one can claim to be an innocent purchaser as against him whose possession raises the inquiry. 2 Ill2d at 182.

The property involved in Ambrosius, however, was not Torrens property. Section 42 of the Torrens Act (Ill Rev Stats c 30, § 86 (1963)) provides the rule for Torrens property:

Except in case of fraud and except as herein otherwise provided, no person taking a transfer of registered land, or any estate or interest therein, or of any charge upon the same from the registered owner shall be held to inquire into the circumstances under which, or the consideration for which such owner or any previous registered owner was registered, or be affected with notice, actual or constructive, or any unregistered trust, lien, claim, demand or interest; and the knowledge that any unregistered trust, lien, claim, demand or interest is in existence shall not of itself be imputed as fraud.

Bell contends that Garlick v. Imgruet, 340 Ill 136, 172 NE 164, is directly applicable in holding that open and notorious possession of property registered in Torrens constitutes constructive notice to the purchaser of the contractual rights of the person on the land. But the ruling in Garlick does not apply to this case for two reasons: First, the contractual right in that case was an option to purchase the property contained in a lease for a term of less than five years. Such leases are specifically exempted from the registration requirement for interests in Torrens property. See section 54 of the Torrens Act (Ill Rev Stats c 30, § 98 (1963)). Secondly, the Supreme Court in Garlick concluded that the conveyance therein was fraudulent. The provisions of section 42 of the Torrens Act quoted above specifically exclude cases in which the conveyance was fraudulent; and there is no allegation of fraud in the instant case.

Bell further contends that the Torrens Act does not provide for the registration of agreements such as the one entered into by Bell and the former owner of the property; and that, this being the case, it would be unjust to hold the agreement unenforceable for want of registration. But no attempt was ever made by Bell to register the agreement, and thus such registration was never refused. Without having attempted to protect its own rights, Bell cannot now argue that they would have been prevented from doing so.

The final contention is that this agreement qualifies as a lease for a term of less than five years, and therefore conveyed to Bell an interest in the property which is valid despite the lack of registration, according to the provisions of section 54 of the Torrens Act (Ill Rev Stats c 30, § 98 (1963)). We are of the opinion, however, that even if the agreement were a lease, it would not be for a term of less than five years, and therefore would not come under the statutory exception.

The general purpose of the Torrens Act is to provide an independent system of registration, whereby an intending purchaser of land can determine from the register the condition of the title. People v. Mortenson, 404 Ill 107, 88 NE2d 35. The Torrens Title registration system is intended to bring together in one place all of the facts relevant to title. The Act by its nature frees the purchaser from the obligation of examining anything other than a “will or lease not exceeding five years where the land is in actual possession of the lessee . . .” Torrens Act, section 54 (Ill Rev Stats c 30, § 98 (1963)). To hold Rosewood liable to Bell on this unrecorded agreement with the prior owner would directly contravene this purpose.

The judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


author: MR. JUSTICE MURPHY

text:
    Sheridan Stein, Plaintiff-Appellee, v. J. Theodore Lindquist and N. Henry Hogstrom, d/b/a Lind-Hog Machine Company, Defendants, and Ohio Casualty Insurance Company, Garnishee-Defendant and Appellant. Otto W. Barnes and John M. Long, Intervening Petitioners and Appellees, v. Ohio Casualty Insurance Company, Respondent-Appellant.
    Gen. No. 50,373.
    First District, First Division.
    February 18, 1966.

      Berchem, Schwantes & Thuma, of Chicago, for appellant.
    John G. Phillips, of Chicago (Sidney Z. Karasik, of counsel), for plaintiff-appellee.
    Otto W. Barnes, of Chicago (Sidney Z. Karasik, of counsel), for intervenor-petitioner-appellee Otto W. Barnes and defendant-appellees.
    Clarence M. Dunagan, of Chicago, for intervenorpetitioner-appellee John M. Long.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Garnishee-defendant, Ohio Casualty Insurance Company, appeals from judgments entered against it totaling $15,000. The garnishment judgments are based on plaintiff’s unpaid personal injury action judgment against the insureds of the garnishee-defendant.

Plaintiff, Sheridan Stein, was injured when a hoist collapsed while he was using it. He brought suit against defendants, J. Theodore Lindquist and N. Henry Hogstrom, d/b/a Lind-Hog Machine Company, owners of the premises on which he was injured. Ohio Casualty, the O. L. T. insurer of the premises, denied coverage under an elevator exclusion in its policy, and defendants Lindquist and Hogstrom were required to employ counsel to defend the action. Lindquist retained Otto W. Barnes and Hogstrom retained John M. Long.

In a non jury trial of the personal injury action, judgment was entered on July 17, 1963, in favor of plaintiff Stein for $10,000. The instant garnishment proceedings are grounded on this judgment. Barnes and Long, in separate petitions, intervened to recover reasonable attorneys’ fees allegedly due because Ohio Casualty failed to defend the basic action.

On September 30, 1964, judgment was entered against the garnishee-defendant in favor of plaintiff Stein for the sum of $10,000 “plus interest from the 17th day of July, 1963.”

On November 4, 1964, after hearing evidence on behalf of petitioners, Barnes and Long, and the respondent, Ohio Casualty, the court entered an order finding that Ohio Casualty had refused to defend the action instituted by Stein “on the sole ground that the accident or occurrence, claim or suit did not come within the terms or coverages of the policy of insurance . . . ,” and that petitioner Otto W. Barnes defended the action on behalf of defendant Lindquist, and that $2,500 would be a fair and reasonable fee for his services, and that petitioner John M. Long defended the action on behalf of defendant Hogstrom, and that $2,500 would be a fair and reasonable fee for his services. Judgments for $2,500 each were entered for both Barnes and Long against Ohio Casualty, and the instant appeal followed.

The garnishee-defendant, Ohio Casualty, contends: (1) “that the trial court erred in giving judgment against the insurer because the accident alleged in plaintiff’s complaint was not covered by its policy of insurance and was expressly excluded from the coverage of its policy”; (2) “that the trial court erred in allowing interest to the plaintiff from the date of the tort judgment when it gave judgment against the insurer in the garnishment”; and (3) “that the fees allowed by the trial court to the intervening petitioners were excessive in the circumstances.”

The instant record contains the pleadings and judgment order in the tort action, the garnishment affidavit of plaintiff, answers to interrogatories by garnishee, the intervening petitions of Barnes and Long and answers of Ohio Casualty, the insurance policy, and a transcript of the testimony offered on the question of attorneys’ fees.

The affidavit for garnishment alleged the entry of the judgment on July 17, 1963, and “that there is unpaid on the judgment $10,000 and ‘Legal rate until Paid.’ ” The answers of the garnishee-defendant to interrogatories are in the negative as to whether garnishee-defendant had any property or was indebted to the judgment debtors.

Initially, we consider defendant’s contention that the basic occurrence was not covered by its policy of insurance. The judgment order entered on September 30, 1964, states that the court heard the arguments of counsel, and “examined the pleadings, the judgment order entered by Judge Epstein, the insurance policies and the findings of the trial court in the original tort action . ” Therefore, and in the absence of anything else in the record, our inquiry on this point is limited to the pleadings and judgment order in the tort action and the insurance policy.

Plaintiff’s amended complaint alleges that his employer occupied a portion of the second floor at 4432 North Kedzie Avenue, Chicago, as a commercial photographic house, under a lease arrangement with Lindquist and Hogstrom; that on July 6, 1956, plaintiff and a coemployee were using a hoist located at the rear of the second floor, and plaintiff was injured when the brickwork and hoisting collapsed and fell on him, inflicting injuries of a permanent nature. The allegations of negligence are the following:

(a) Initially constructed the above-mentioned hoist in an unsafe manner in that it did not contain adequate supporting structural members:
(b) Erected or constructed the above-mentioned hoist or crane without first securing a permit to do so from the City of Chicago;
(c) Failed to warn the plaintiff of the existence of a structural weakness of the cornice or section of said roof wherein said crane or hoist was used or connected;
(d) Failed to maintain its roof, cornices on said roof, and other attached services in a reasonably safe condition;
(e) Failed to inspect the cornices, the roof and its attached surfaces and the crane or hoist and the appurtenances thereof;
(f) Utilized defective materials or permitted the use of defective materials in the construction of said crane or hoist and further in the construction or use of bricks, mortar and other cornice substances.

The judgment order entered on July 17, 1963, in favor of plaintiff in the sum of $10,000, included in its findings: that Lindquist and Hogstrom had constructed the hoist in a negligent and unsafe manner, “in that the structure of the hoist, the building cornice, the brick work, and the mortar, were inadequate and unsafe and were the sole proximate cause of the plaintiff’s injuries”; and “that the hoist did not constitute an elevator within the provisions of the ordinances of the City of Chicago relating to elevators.”

The policy shows that its coverage does not apply to “elevators at the premises.” In the “Conditions” of the policy, the meaning of the word “elevator” is set forth as follows:

“4. Elevator Defined. The word ‘elevator’ wherever used in this policy shall mean any hoisting or lowering device operated between floors or landings and all appliances thereof including any car, platform, shaft, hoistway, stairway, runway, power equipment and machinery. The word ‘elevator’ within the meaning of this definition shall not apply to ... (4) hoists within a building not operated through a hatchway or manually operated hoists located outside the walls of a building, ... or, (6) escalators or conveyers used exclusively for carrying property.”

An extended discussion of garnishee-defendant’s authorities is not required. We agree that the coverage extended by its policy 'did not include liability for bodily injuries arising “out of the ownership, maintenance or use of any elevator at the [defendant’s] premises,” and this court should not rewrite the policy “or fail to give effect to part of the parties’ contract.” We also agree, as said in McCann for Use of Osterman v. Continental Cas. Co., 6 Ill App2d 527, 533, 128 NE2d 624 (1955):

“If the provisions limiting liability are ambiguous or equivocal, then they should be construed most strongly against the insurer. . . . This canon of construction, however, does not authorize a distortion of language or the exercise of inventive powers for the creation of an ambiguity where none exists.”

Plaintiff Stein contends that on this record both the “pleaded accident” and the “proven accident” fall within the coverage of the instant policy.

As to the “pleaded accident,” plaintiff asserts that the complaint is the test of an insurer’s duty to defend a complaint. In Sims v. Illinois Nat. Cas. Co., 43 Ill App2d 184, 193 NE2d 123 (1963), where, in referring to an annotation in 50 ALR2d 458, the court said (p 191):

“At the outset of the annotation the rule is announced as follows:
“It appears to be well settled that, generally speaking, the obligation of a liability insurance company under a policy provision requiring it to defend an action brought against the insured by a third party is to be determined by the allegations of the complaint in such action.”

Cited in support of this statement are cases from Illinois and many other states indicating a wide acceptance of the rule. In Appleman Ins. Law & Practice, Vol 7A, Sec 4683, page 436, the rule is stated as follows:

“An insurer’s duty to defend an action against the insured is measured, in the first instance, by the allegations in the plaintiff’s pleadings, and if such pleadings state facts bringing the injury within the coverage of the policy, the insurer must defend, irrespective of the insured’s ultimate liability to the plaintiff.”

Thus, according to the foregoing, the generally recognized doctrine is that the insurer is under a duty to defend a suit against an insured where the petition or complaint in such suit alleges a state of facts within the coverage of the policy. And while there is some conflict of authority, the majority of decisions of the courts which have passed on the question adhere to the general rule even though the insurer’s investigation discloses a conflict between the allegations of the complaint and the actual facts as known to or ascertainable by the insurer. Typical of the latter cases is Lee v. Aetna Cas. & Surety Co., 178 F2d 750 (NY) where the court said:

“This language means that the insurer will defend the suit, if the injured party states a claim which, qua claim, is for an injury ‘coverecT by the policy; . . . and it is irrelevant that the insurer may get information from the insured, or from anyone else, which indicates, or even demonstrates, that the injury is not in fact ‘covered.’ ”

In Rom v. Gephart, 30 Ill App2d 199, 173 NE2d 828 (1961), the court said (p 207):

“In this State it is the law that where the cause of action stated is within the coverage provided by the policy it is the insurer’s duty to defend, and that where the complaint states different causes of action or theories of recovery, one of which is within the coverage and others which may not be, the insurer is bound to defend the ones which would be within the coverage of the policy.”

From the foregoing guidelines, it follows that if the allegations of the complaint here include a state of facts within the coverage of the policy, “irrespective of the insured’s ultimate liability to the plaintiff,” and absent anything to the contrary in the record, plaintiff’s “pleaded accident” would be sufficient to prove a prima facie basis for a garnishment judgment, and any doubt will be resolved in favor of the insured.

As to the “proven accident” theory, plaintiff asserts, “the findings of the trial court support the tort judgment and indicate that the trial court found an evidentiary basis for the allegations of the complaint that the garnishee’s insured, Lindquist and Hogstrom, were guilty of negligence in the maintenance and operation of their premises so as to bring the case within the provisions of the ‘Premises — Operations’ insuring agreements of the policy, . . . .”

We are not persuaded that the “non-coverage” asserted by garnishee-defendant applies here. At the garnishment trial, measured by the allegations in plaintiff’s amended complaint or by the findings of the trial court in its judgment order, plaintiff proved a prima facie case bringing the occurrence within the coverage of the policy, and which Ohio Casualty should have defended, “irrespective of the insured’s ultimate liability to the plaintiff.” Whether obtained from its insured or from other sources, if Ohio Casualty was possessed of evidence which may have proved the claim against its insureds fell outside the coverage of the policy, the burden of proof rested on Ohio Casualty. As said in 17A CJS § 343, “one claiming to be excepted from general liability must bring himself clearly within the exception.” The only description of the hoist is contained in plaintiff’s amended complaint. There is nothing in this record to show that the hoist came within the meaning of the word “elevator,” as used in the policy.

Moreover, from this record, we are required to presume as to the garnishment judgment in favor of plaintiff Stein “that the evidence was sufficient to sustain the decision, and that the omitted evidence was adverse to appellant and justified the action of the lower court.” 2 ILP, Appeal and Error, § 715, p 633.

We consider next the contention of Ohio Casualty that it was error for the court to allow interest on the tort judgment from the date of its entry. Authorities cited include 15 ILP, Damages, § 64, p 484, where it is said that, as a general rule, interest cannot be recovered as a matter of right in an action of contract on an unliquidated or disputed claim. Ohio Casualty further argues that “where liability is not clear or certain, the defendant should be permitted to dispute it without the penalty of interest superadded if he is unsuccessful.” To apply this rule in this case would be unfair and a hardship on the insureds. Statutory interest on the judgment of plaintiff commenced on July 17, 1963, when the trial court in the tort action rendered judgment against Ohio Casualty’s insureds. The policy provided that Ohio Casualty was “to pay on behalf of the Insured all sums which the Insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, . . . because of bodily injury . . . .” The tort judgment and any statutory interest due on it obviously come within this provision. We find no merit to this contention.

Finally, we consider the contention of Ohio Casualty “that the trial court was in error in directing two fees be paid to its assureds’ two attorneys, since the assureds were entitled to one, and only one, defense under its policy of insurance.” Petitioners Barnes and Long asserted “while the insurance company owed only one defense to its insured — which it failed to provide — it was not unreasonable, indeed it was necessary, for the insureds, sued individually as well as jointly, to retain separate lawyers. The presentation of a single defense would not preclude the use of several lawyers. . . . where the insured defendants had dissolved their partnership before the accident and before suit, and had developed adverse, even hostile interests in respect to the defense of the matter, it was necessary for the defendants to have retained separate lawyers. . . . Such decision should not be disturbed unless palpably against the weight of the evidence; i. e., unless an opposite conclusion is compelled.”

Although the policy names both Hogstrom and Lindquist as the insureds, we do not believe this record justified or required the services of a separate lawyer for each defendant. It was a single occurrence, and the liability asserted by the amended complaint against both defendants was not divisible or dependent upon facts which did not apply to both defendants equally. Any personal differences between the defendants could not be asserted to lessen their liability in plaintiff’s action. We have examined the testimony of the petitioners and the expert testimony offered on behalf of Ohio Casualty and conclude that the trial court was in error in awarding judgments totaling $5,000 for attorneys’ fees to the petitioners Barnes and Long. In our opinion, a proper and reasonable fee for the defense of the basic tort action is $2,500 to be divided between both petitioners.

For the reasons given, the judgment entered against the garnishee-defendant in favor of plaintiff Stein, for the sum of $10,000 “plus interest from the 17th day of July, 1963,” is affirmed. The judgments for $2,500 each entered in favor of Otto W. Barnes and John M. Long are vacated and set aside and, pursuant to the authority given to this court in section 92(1) (e) of the Civil Practice Act (Ill Rev Stats 1965, ch 110), it is ordered that judgments be and they are hereby entered in favor of petitioner Otto W. Barnes in the amount of $1,250, and in favor of petitioner John M. Long in the amount of $1,250, against respondent, garnishee-defendant Ohio Casualty Company.

Affirmed in part, reversed in part and judgments entered here.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


author: MR. PRESIDING JUSTICE KLUCZYNSKI BURMAN, J.,

text:
    In the Estate of Gussie Anderson, Deceased. Alida Drake and Laura Therien, Petitioners-Appellees, v. Virginia DeBower and Hilda R. Madson, Individually and as Executrix, Respondents and Cross-Petitioner-Appellants, v. First Federal Savings and Loan Association of Chicago, Respondent to Cross-Petition-Appellee, v. Bell Savings and Loan Association, Respondent to Cross-Petition and Cross-Petitioner-Appellee.
    Gen. No. 50,429.
    First District, First Division.
    February 18, 1966.

      Grosshandler and Compere, of Waukegan, for respondents and cross-petitioner-appellants.
    Gregory A. Gelderman and Chris Karafotias, of Chicago, for petitioners-appellees.
    Leo B. Blaber, Jr., of Chicago, for respondent to cross-petition-appellee, First Federal Savings and Loan Association of Chicago.
    Cummings & Wyman, of Chicago (Kurt W. Teuthorn, Henry F. Vallely and Robert E. Ulbricht, of counsel), for respondent to cross-petition and cross-petitioner-appellee, Bell Savings and Loan Association.
   MR. PRESIDING JUSTICE KLUCZYNSKI

delivered the opinion of the court.

The issue involved herein is the correctness of an order making disposition of balances in three savings accounts after the death of the depositor thereof.

The sequence of events leading up to the issuance of the order appealed from is as follows:

Gussie Anderson, the decedent, on or about July 24, 1959, opened savings account No. 135897 at the Bell Savings and Loan Association, executing an instrument entitled “Declaration of Trust — Revocable” in which Laura Therien and Virginia De Bower were designated as beneficiaries. The pertinent provisions of the agreement are as follows:

DECLARATION OF TRUST — REVOCABLE
(One Trustee)
By this Declaration of Trust dated July 24, A.D. 1959 and known as Trust No. 28289, the undersigned hereby declares that the withdrawable capital account established with the Bell Savings and Loan Association, and issued in the name of the undersigned as trustee, including all additions hereafter made or accumulations resulting therefrom, is held in trust by the undersigned in accordance with the terms hereof for the following beneficiary (or beneficiaries, as tenants in common), who shall have an interest in the withdrawal value of said account in the proportion set opposite each beneficiary’s name: . . .
The terms and conditions under which the undersigned holds said capital account are as follows:
1. All earnings thereon shall be added to the withdrawable capital in said account and become and remain a part of this trust, subject to the terms hereof, unless the undersigned, as trustee, shall direct that the same be paid to the undersigned for his own personal account and use.
2. Upon compliance with the rules and by-laws of the Association, the undersigned, as trustee, shall have the right to vote, to sign and execute proxies with respect to the withdrawable capital comprising said account or the voting thereof, to make payments upon, withdraw, surrender and redeem and otherwise deal with respect to said withdraw-able capital and the withdrawal value thereof as fully as though owned absolutely by the undersigned. However, upon any such withdrawal from said account by the undersigned, as trustee, the trust hereby declared shall be revoked as to the value of the withdrawable capital so withdrawn and the undersigned shall retain the proceeds of such withdrawal for his own personal account and use.
3. The undersigned has the right at any time to change the beneficiary or beneficiaries or the proportionate interests or in any manner to amend this trust, but it is understood that no such change or amendment shall be effective as to the Association unless and until written notice thereof in such form as the Association shall prescribe is delivered to the Association at its office in Chicago, Illinois.
4. The death of any beneficiary before the death of the undersigned shall operate as a revocation of the interest of that beneficiary in this trust and the interest of such deceased beneficiary shall vest in the undersigned individually. The death of all the beneficiaries of this trust before the death of the undersigned shall operate as a complete revocation of this trust.
5. Upon the death of the undersigned the surviving beneficiaries shall become entitled to their proportionate interests in the withdrawal value of said account as provided by this Agreement or any amendment thereof as herein authorized.

On or about February 26, 1960, the decedent opened Account No. 283266 in the First Federal Savings and Loan Association of Chicago in her name, as Trustee, executing a document entitled “Individual Trust Account,” in which Laura Therien, Hilda R. Madson and Alida E. Drake were designated as beneficiaries. The pertinent provisions of that agreement are as follows:

Discretionary Revocable Trust Agreement With Designated Successor Trustee
The funds in the account indicated on the reverse side of this instrument, together with earnings thereon, and any future additions thereto are conveyed to the trustee as indicated for the benefit of the beneficiary as indicated. The conditions of said trust are: (1) The trustee is authorized to hold, manage, invest and re-invest said funds in his sole discretion; (2) The undersigned grantor reserves the right to revoke said trust in part or in full at any time and any partial or complete withdrawal by the original trustee shall be a revocation to the extent of such withdrawal; (3) In the event of the death of said trustee ... is appointed successor trustee, and in the event of his death . . . is appointed successor trustee, and such successor trustees shall have the powers of the original trustee; (4) This trust is for the life of said beneficiary and six (6) months and if not revoked within six (6) months after the death of said beneficiary, funds in said account shall be the property of the estate of said beneficiary; (5) the association in which such funds are invested is authorized to pay the same or to act in any respect affecting said account before or after the termination of this trust upon the signature of the trustee and has no responsibility to follow the application of the funds.

On or about July 6, 1962 she opened a joint savings account No. 358869 in the First Federal Savings and Loan Association of Chicago in her name and that of Alida E. Drake. The pertinent provisions on the signature card are as follows:

Joint Savings Account, Proxy. One Signature for Withdrawal. Account No. A-358869 Anderson, Gussie and Drake, Alida E. 7/6/62 (Type all Names) (Last Name) (First Name) (Middle Name)
As joint tenants with right of survivorship and not as tenants in common the undersigned hereby apply for a membership and for a Joint Savings Account in the First Federal Savings and Loan Association of Chicago
and for the issuance of evidences of membership in the joint names of the undersigned as joint tenants with right of survivorship and not as tenants in common.

She then executed a Will on August 8, 1963 naming her sister, Hilda R. Madson, executrix, and therein providing as follows:

Second. I give devise and bequeath to my niece, Virginia James De Bower, all my property real, personal and mixed of which I may die siezed [sic]. This shall also include the following savings accounts :
First National Bank Account No. 1647347
Bell Savings and Loan Account No. 135897
First Federal Savings and Loan Account No. 283266
First Federal Savings Account No. 358869

She died August 21, 1963 and the Will was admitted to probate, and left surviving her:

Hilda R. Madson, sister
Laura Therien, sister
Alida E. Drake, Niece (child of deceased sister)
Virginia De Bower, niece (child of deceased sister)
Russell E. Rasmussen, husband of deceased niece
Russell Larsen, husband of deceased niece

The Bell Savings Account No. 135897 had remaining on deposit $11,716.26; the First Federal Savings Account No. 288266 had a balance of $12,781.36; and in the First Federal joint savings Account No. 358869 there was a balance of $639.08.

Alida Drake and Laura Therien filed a petition for citation in the probate estate charging that the executrix had or should have had possession and control of the three accounts and prayed that citation issue against her and that the court determine all questions of title to the assets and find that they were owners of the same in whole or in part.

Hilda R. Madson, as executrix, and with Virginia De Bower individually, filed answer to the petition alleging that Bell Savings and First Federal had retained the funds and had refused to deliver any part of them to the executrix; that Virginia De Bower claimed all right and title to the funds by virtue of paragraph Second of Gussie Anderson’s last Will; that as executrix it was Hilda Madson’s duty to collect and, therefore, they requested an order denying and dismissing the petition and finding that decedent by her Will, affected a revocation of the “tentative trusts” and the joint account. Hilda R. Madson further cross petitioned for citation against the First Federal and Bell Savings and for an order to deliver the funds in the accounts to her as executrix.

Both Bell Savings and First Federal answering the citation, requested dismissal of Madson’s cross petition. They denied that the trusts and the joint tenancy were revocable by will or that decedent did effect a revocation by her Will and prayed for an order directing them to pay the funds to the respective beneficiaries in the trust accounts and to the surviving joint tenant in the joint account.

Upon hearing the issues involved, the Probate Division of the Circuit Court entered the instant order finding the Bell Savings Account No. 135897, a revocable declaration of trust in which Therien and De Bower were the beneficiaries, to be an express inter vivos trust and not a tentative trust; that the beneficiaries had a vested interest subject to being divested by revocation or amendment during the life of decedent, Gussie Anderson, in accordance with the terms of the declaration; that the Will did not amend or revoke the trust; that the executrix was not entitled to the balance therein. The finding regarding the First Federal Savings Account No. 283266 wherein Therien, Madson and Drake were the beneficiaries was the same and as to the First Federal joint savings account, the court found that Drake, the surviving joint tenant, was entitled thereto. The order then dismissed the executrix’ cross petition and directed that the funds be paid to the respective beneficiaries and the surviving joint tenant.

Virginia De Bower, the sole legatee in the Will, and Hilda R. Madson, individually and as executrix of the estate, hereinafter referred to as respondents, appeal from said order.

They contend that “the Will is either inconsistent with a trust intent or that it expressly revoked the trust savings accounts.” They say “the Will in this case is clearly inconsistent with any intention on the part of the decedent to create a trust and rebuts any inference that might be drawn from the deposit agreement that a trust was truly intended by the decedent when she opened the account. The court could so find and dispose of the case on this basis.” No further reason or logic is propounded by them to sustain or support this theory. Yet they do accept the rule expressed in the recent case of In Re Estate of Petralia, 32 Ill2d 134, 204 NE2d 1 (1965), at p 138, where the court held that:

Where a person makes a deposit in a savings account in a bank or other savings organization in his own name as trustee for another person intending to reserve a power to withdraw the whole or any part of the deposit at any time during his lifetime and to use as his own whatever he may withdraw, or otherwise to revoke the trust, the intended trust is enforceable by the beneficiary upon the death of the depositor as to any part remaining on deposit on his death if he has not revoked the trust.

In the alternative, they say, the court could also consider the issue as one involving revocation of the savings account trusts. They assert that the two trust accounts were “Totten or tentative” trusts and argue that, according to comment to section 58 of the Restatement of Trusts (Second Edition) p 157, a tentative trust of a savings deposit can be revoked by the depositor by Will; that it is so revoked where by Will he makes a disposition of the deposit in favor of anyone other than the beneficiary.

The petitioners concede this but say these savings accounts are not “Totten or tentative” trusts but trusts inter vivos. The American Law Institute in the Appendix to the Restatement of Law, (second edition), in comment b to section 58 on Trusts p 123, contains the statement:

It has been widely held that where a deposit is made in a savings account, or with a building and loan association, in the name of the depositor as trustee for another person, and there is no further indication as to the depositor’s intention, the depositor has full power to deal with the deposit as he likes but if he dies without having otherwise disposed of the deposit during his lifetime or by will, the named beneficiary is entitled to the deposit. It is sometimes said that the trust is a “tentative trust.” The trust is sometimes called a “Totten Trust” because the rules governing it were laid down in In re Totten, 179 NY 112, 71 NE 748 (1904). [Emphasis added.]

A review of In re Totten (wherein the Totten or tentative trust rule was established), discloses the following facts and circumstances. Decedent, there, during her lifetime opened several savings accounts in her name as trustee for Emil Lattan. The only indication that the accounts were anything other than individual accounts was the title under which the accounts were opened. There were no separate trust agreements nor was there any other evidence presented with respect to these accounts. Emil Lattan, the beneficiary, had no notice of their existence until after the death of the depositor. He brought suit for the funds claiming that the accounts were irrevocable trusts. The court held (p 125) that:

A deposit by one person of his own money in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration such as delivery of the pass book or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor. [Emphasis ours.]

In the instant case, Gussie Anderson, the depositor, executed declarations of trust containing specific provisions regulating the deposit and disposition of the funds in the accounts.

Farkas v. Williams, 5 Ill2d 417, 125 NE2d 600 (1955) held that such declarations of trust created valid inter vivos trusts effective to give the beneficiary title to the property therein, after the death of the settlor; that the control retained by the settlor over the subject matter of the trusts did not render the trust instruments attempted testamentary dispositions; and that otherwise they would be void as testamentary dispositions for want of compliance with the statute on wills. Further commenting upon such trusts the court (p 422) said:

Immediately after the execution of each of these instruments, he [the settlor] could not deal with the stock therein referred to the same as if he owned the property absolutely, but only in accordance with the terms of the instrument.

The basis for the “Totten Rule” was a savings account in the name of a depositor as trustee for another, nothing more. The court did distinguish it from a case where “[t]here was much more than a mere deposit in the name of one person in trust for another, for an independent instrument was executed, which not only declared the intention of the depositor, but directed when the account was to be paid to the beneficiary.” In re Totten, 71 NE 752, 753.

In the case before us, we have more than mere accounts in the name of the depositor as trustee. We have the specific trust declarations containing definite terms and provisions regarding the deposit and disposition of funds and the change, alteration, modification and termination of the trust. These trust accounts, therefore, cannot be considered “Totten or tentative” trusts but, as held in Farkas, they are express inter vivos trusts.

In considering whether they may be affected by the depositor’s will, we note that the trust agreements did not specifically provide for revocation by Will. Where the language provides for right of revocation but is not specific as to how it is to be exercised, it becomes a matter of interpretation of the terms used whether the depositor manifested an intention to reserve the power to revoke by will as well as by an act inter vivos. Restatement of Trusts (Am Law Inst Second) sec 330, comment j. The intention at the time of the creation of the trust is determinative and not any subsequent contrary indication. Restatement, sec 4, comment a.

In Merchants Nat. Bank of Aurora v. Weinold, 22 Ill App2d 219, 225, 160 NE2d 174 (1959) the court said: “In Restatement of Law of Trusts (Am Law Inst 1935) sec 330, comment j, it is said ‘If the settlor reserves a power to revoke the trust by a transaction inter vivos, as for example, by a notice to the trustee, he cannot revoke the trust by his will.’ ” The court then held that if in the trust agreement the settlor reserved an exercise of the power to alter, change or modify the trust, and there was an absence of words or provision to alter, change or modify by will, settlor’s attempt to do so by will was ineffective.

Neither the Bell Savings trust agreement nor the First Federal trust agreement specifically granted the right to revoke or alter by Will. If such right exists, it must be by implication. Specific methods of revocation in both agreements were by withdrawal of the balance on deposit. In the case of the Bell Savings agreement, a change of beneficiary or a change of proportionate interest of the beneficiary could be effected by a written notice to the Association. The situation would, therefore, fall within the above comment of The Restatement of Trusts sec 330, comment j, and the settlor could not revoke or alter by will. See Cohn v. Central Nat. Bank of Richmond, 191 Va 12, 60 SE2d 30.

The First Federal agreement provides that it may be revoked at any time, and that any withdrawal by the original trustee shall be a revocation of the extent of such withdrawal. A reasonable and fair conclusion would, therefore, be that it refers only to inter vivos transactions. Upon her death, Gussie Anderson would have lost the ability to revoke since time, in the finite sense, fan out on her. We note further that Ill Rev Stats ch 32, sec 770b, Illinois Savings and Loan Act 1963, sec 4-10-b provides for methods of revocation of trust accounts opened with state and federal associations in the absence of a contrary agreement between the trustee and the association. The express statutory method of revocation prescribed is the withdrawal of funds and the method of changing the beneficiary (which might conceivably be equated with a revocation since one could name oneself beneficiary) is by a written direction accepted by the association. Subsection 3 provides that the beneficiaries shall be the holder of the account upon the death of the trustee. By statute, therefore, revocation by will is not contemplated.

We further believe that were we to construe these trust agreements as conferring power upon the settlor to revoke by Will, their validity would be in doubt because the power would exceed the line of demarcation between inter vivos trusts and testamentary dispositions as established by the Farkas case.

For these reasons we hold that the trial court committed no error in finding these trusts were not revocable by Will.

In attacking the trial court’s ruling that the balance remaining in the First Federal joint savings account No. 358869 be paid to the surviving joint tenant, respondents argue that it was necessary for the court to go behind the form of the deposit agreement to ascertain the true intention of the decedent when she opened the account. They admit that a deposit in a joint savings account raises a presumption of donative intent. However, they say the presumption being rebuttable, if there is any evidence which tends to rebut donative intent, the burden then falls upon the survivor to show by clear and convincing evidence that a gift was, in fact, intended and completed. In the latest case involving a joint savings account with right of survivorship, Murgic v. Granite City Trust & Sav. Bank, 31 Ill2d 587, 202 NE 2d 470 (1964) our Supreme Court reviewed the various previous decisions and established the principles applying to such by stating (p 591):

We hold that an instrument creating a joint account under the statutes presumably speaks the whole truth; and, in order to go behind the terms of the agreement, the one claiming adversely thereto has the burden of establishing by clear and convincing evidence that a gift was not intended. This burden does not shift to the party claiming under the agreement.

It is not disputed that the joint account was opened in a manner authorized by statute (Ill Rev Stats c 32 §770a; Illinois Savings & Loan Act, 1963 Edition, sec 4-10 and Ill Rev Stats 1963 c 76 §§2(b) and 2(c)). The only contrary inference produced by respondents, who are the ones claiming adversely to the instrument creating the joint account, is the expression in decedent’s Will that she gives, devises and bequeathes to Virginia De Bower the “First Federal Savings and Loan Account No. 358869.”

At the risk of being repetitious, we say it is the intent of the depositor at the time of creation of the account that is determinative. In Murgic the court considered a will subsequently executed by one of the joint tenants and held it was of no significant help when related back to the time of creation of the account in determining donative intent. And so in the instant case respondents failed to produce clear and convincing evidence that Gussie Anderson did not create a valid joint account with right of survivorship. Therefore, the joint tenancy having been properly established, its legal effect could not be changed by will. For as held in Eckardt v. Osborne, 338 Ill 611, 615, 170 NE 774 (1930) “it is elementary that where property is held in joint tenancy the joint tenant first dying has no interest which can be devised.” See also Klajbor v. Klajbor, 406 Ill 513, 94 NE2d 502 (1950). The trial court properly directed payment of the remaining balance to Alida E. Drake, the survivor.

The order appealed from is affirmed.

Affirmed.

MURPHY, J., concurs.

BURMAN, J.,

dissenting:

I am unable to agree with the result reached by the majority of the court.

By depositing her money in the two savings accounts in trust, the deceased created revocable inter vivos trusts, of which she was the sole trustee. By the language of the declarations of trust, quoted in the majority opinion, she was empowered to revoke, alter, or amend the trust at any time and in any way she saw fit. The procedure by which she could effect such a revocation, however, was not fully spelled out in either case. It is clear that she could do so simply by withdrawing some or all of the funds in each account. A simple written direction from her communicated to the savings and loan associations would also have sufficed. Yet it is here contended that a provision to the same effect contained in her will, which was executed with all the requisite safeguards and formalities, subsequent to the opening of the accounts, is not effective to revoke the trusts. I see no valid basis for such a distinction.

Furthermore, it is my view that a fair reading of the declarations of trust signed by the deceased would lead a depositor to the conclusion that the funds in the account are hers to deal with as she sees fit. The deposit agreements give the beneficiaries nothing more than a mere expectancy. It is apparent that the deceased in the instant case was under the impression that this property, like her other property, could be disposed of by will. There is no provision in the declarations of trust to the contrary.

The defendant principally relies upon Farkas v. Williams, 5 Ill2d 417, 125 NE2d 600, for the proposition that the rights of the settlor-trustee of a revocable inter vivos trust to deal with the property in the trust are not absolute, but are limited in accordance with the terms of the declaration of trust, 5 Ill2d at 422. But in Farkas, there was no attempted revocation by the settlor-trustee, and no other act on his part which was challenged as beyond his powers under the terms of the trust. The question in that case was whether those powers which were reserved to the settlor-trustee, were so extensive as to render the trust invalid as an attempted testamentary disposition. The court held that they were not so extensive as to require that result. A further distinction between Farkas and the instant case is that Farkas involved shares of capital stock, while this case involves deposits in bank accounts and that Farkas died intestate.

The recent case of In re Estate of Petralia, 32 Ill2d 134, 204 NE2d 1, raised the same question of law as in Farkas, but involved a savings account in the name of the deceased as trustee for a named beneficiary. Petralia differed from the instant case in that there was no formal declaration of trust, no will, and no question of revocation. As in Farkas, the validity of the trust was challenged by the intestate heirs. The court characterized the trust as a “tentative” or “Totten” trust, and held that the interest which passed to the named beneficiary at the time the account was opened, although contingent and highly destructible by act of the settlor-trustee, was sufficient to sustain the validity of the trust.

As to the joint savings account with right of survivor-ship, it is undisputed that the deceased had the right to withdraw the funds and close the account at any time, thereby depriving her joint tenant of any interest in the property. In my opinion this right impliedly gives her the right to achieve the same effect by so providing in her will. In Murgic v. Granite City Trust & Sav. Bank, 31 Ill2d 587, 202 NE2d 470, our Supreme Court held that one claiming adversely to the surviving joint tenant has the burden of establishing by clear and convincing evidence that a gift was not intended. In Murgic the depositor executed a will containing a general residuary bequest to heirs in Yugoslavia without mentioning the joint account. It is hard to imagine a manifestation of a depositor’s intention clearer than the Last Will of the depositor in the instant case, which specifically identified the accounts and left them to someone other than the joint tenant.

The intent of the deceased should be the guiding star in determining who receives her property at her death. It is her property to give, and unless she created an irrevocable trust her intention as to its disposition should govern. In my opinion, the will of the deceased in this case effectively revoked the trusts, and the funds should pass in accordance with the testamentary provisions.

       Note: The First National Bank Account, a joint savings account in the name of decedent and Hilda R. Madson, is not involved in these proceedings.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. William H. Brown, Jr., Defendant-Appellant.
    Gen. No. 50,445.
    First District, First Division.
    February 18, 1966.
    Rehearing denied March 7, 1966.

      Manning K. Letter, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joel M. Flaum, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE KLUCZYNSKI

delivered the opinion of the court.

Defendant, William H. Brown, Jr., was convicted by a jury of the crime of armed robbery and sentenced to the penitentiary. The only contention on appeal is that the indictment returned on February 10, 1964, did not state the time and place of the offense as definitely as could be done and was, therefore, invalid as not complying with the requirements of section 111-8 (Ill Rev Stats 1963, c 38, § 111-3) of the Criminal Code then effective and applicable. The indictment did charge that the offense was committed on January 8, 1964, in the County of Cook, Illinois. No attack was made thereon prior to this appeal. The Supreme Court has disposed of such contention with finality in People v. Blanchett, 33 Ill2d 527, 212 NE2d 97 (1965).

The judgment, therefore, is affirmed.

Affirmed.

MURPHY and BURMAN, JJ., concur.