text:
    Lillian L. Molner, Individually and as Executor and Trustee Under Will of Herman Molner, Deceased, Appellant, v. David Silbert, as Executor and Trustee Under Will of Herman Molner, Deceased; Arthur Reinhold, Individually and as Executor and Trustee Under Will of Herman Molner, Deceased; Belle M. Cohn et al., Appellees.
    Gen. No. 46,665.
    First District, First Division.
    January 9, 1956.
    Rehearing denied January 30, 1956.
    Released for publication February 27, 1956.

      Barnard and Barnard, of Chicago, for appellant; Morton Johm Barnard, of Chicago, of counsel.
    David Silbert, of Chicago, for Arthur Reinhold, and David Silbert, Executors and Trustees, appellees; David Freed, of Chicago, for Marilyn Molner Mittelman, and Belle M. Cohn, appellees; D’Ancona, Pflaum, Wyatt & Risldnd, of Chicago, for Sylvia Leeser, appellee; David Silbert, and Norman M. Mertes, both of Chicago, of counsel.
   JUDGE BURKE

delivered the opinion of the court.

Herman Molner of Chicago made his last will on October 30,1950, and died July 28,1951, survived by his widow, Lillian L. Molner, Ms daughter by a previous marriage, Belle M. Cohn, and seven grandchildren by previous marriages. The will was admitted to probate in the Probate Court of Cook County. The widow and two others are the executors. He left a gross estate of approximately $800,000 consisting of (a) goods and chattels of less than $2,000 distributable to the widow, (b) real and personal estate passing under the will amounting to approximately $747,000, (c) insurance of $51,000 of which $1,000 was payable to the widow, $25,000 to his daughter Belle and $12,500 to two of his grandchildren, and (d) property held in joint tenancy between testator and his wife amounting to less than $3,000. Debts of the decedent amounted to approximately $2,600, funeral expenses about $3,300, executors’ and attorneys’ fees $50,000, other expenses of administration $200 and the surviving spouse’s award $25,000. The widow, individually and as executrix and trustee under the will, filed a complaint to construe the will on the ground that the will is ambiguous. Subsequently she filed an amendment to the complaint. Certain defendants were defaulted. The other defendants moved to dismiss the complaint as amended on the ground that the will is not ambiguous. The matter was heard on argument of counsel without the introduction of evidence. The court sustained the motions of defendants to dismiss the complaint on the ground that the will is not ambiguous and does not require construction. Plaintiff elected to stand by her complaint as amended and the court dismissed the complaint. Plaintiff, appealing, asks that the decree be reversed and that the cause be remanded with directions to enter a decree construing the will according to her contentions.

By Article First the testator directed that “all my just debts and funeral expenses be fully paid.” Under Article Second he gave to plaintiff all of his goods and chattels. By Article Third he gave to three trustees “one-third of all the rest, residue and remainder of my estate, of every kind, nature and description -whatsoever, real, personal and mixed, of which I shall die seized or possessed, of which I may own, or to which I may he entitled at the time of my death, and wheresoever situated.” This bequest was designated as Trust Fund A. Article Fourth provided that “all the rest, residue and remainder of my estate, of every kind, nature and description whatsoever, real, personal and mixed, of which I shall die seized or possessed, or which I may own, or to which I may be entitled at the time of my death, and wheresoever situated” be given to the same trustees. It was designated as the “trust estate” and will be so referred to herein. Under Article Fourth the trust estate was directed to be disposed of as follows: (a) Bequests of $1,000 to $5,000 each were given to twelve named individuals. After payment in full of these bequests and when there is money available for that purpose, testator directed that a total of $63,000 be distributed among seven designated charities, (b) The trustees were then directed to pay to testator’s daughter, Belle, so long as she lives, the sum of $12,000 per year, payable first from the income of the trust estate and then from the principal thereof. The trustees were permitted to defer such payments to her if they found it necessary in order to make payment of taxes or other obligations upon the estate or incurred by the trustees to pay any such obligations. After payment in full of the bequests under paragraphs (a) and (b) and subject to the payments required to be made by paragraph (c) and when all obligations against the trust estate have been paid or provided for, the trustees were directed to divide “all the rest, residue and remainder of the trust estate devised by this Article Fourth and any accumulated income therefrom not used for the payment of said bequests” into seven separate trusts for the benefit of the seven grandchildren of testator.

Plaintiff argues that it was the intention of the testator that the bequests to the trustees of Trust Fund A under Article Third be one-third of the estate before deducting expenses of administration and surviving spouse’s award. Defendants assert that there is no ambiguity in the will requiring construction as to the allocation of administration expenses and surviving spouse’s award and that the phrase “rest, residue and remainder” means that part of the estate remaining after payment of administration expenses and surviving spouse’s award. The purpose of construing a will is to ascertain the intention of the testator. It is a cardinal rule to be followed in the construction of wills that the intention of the testator shall be ascertained and given effect if that can be done without violating some rule of law or public policy, and if possible, all of the language used by the testator must be given effect. The entire will must be considered and the testator’s intention ascertained from a consideration of all the language used in whatever portion of the will the language may be found. No technical rule of construction should be permitted to interfere with ascertaining the testator’s real intention. The law does not limit the testator to a single sentence in expressing his intention in regard to the disposition of his estate or any part of it. See Boldenweck v. City Nat. Bank & Trust Co. of Chicago, 343 Ill. App. 569, 579.

The first article of the Molner will directed that “all my just debts and funeral expenses be fully paid.” The parties agree that the words “my just debts” mean debts owing at the time of the death of the decedent and do not include expenses of administration or federal estate taxes, since they are obligations of the estate incurred after the death of the decedent. Plaintiff relies heavily on the case on In re Estate of Doerfler, 348 Ill. App. 347. In that case the first article of the will ordered the executor to pay all his just debts and funeral expenses. The second article directed that after the payment of the funeral expenses and debts “I give, devise and bequeath to my husband, William J. Doerfler, a one-third part of my estate and property of whatsoever kind and wheresoever situated.” Articles Third to Eighth gave general legacies of specific amounts to certain persons and charities. The Ninth Article provided: “All the rest, residue and remainder of my estate and property I give, devise and bequeath one-half to my daughter . . . and the other half to my sister . . . and her daughter. . . .” The issue was whether the husband’s share was to be computed as one-third of the estate after deducting debts owing at the time of decedent’s death and funeral expenses, but before deducting expenses of administration and federal estate taxes, or whether the husband’s share was one-third of the estate after their deduction. The court decided that the words “my just debts” means debts owing at the time of decedent’s death and do not include expenses of administration or federal estate taxes, since they are obligations of the estate which are incurred after the death of the decedent. The opinion in the Doerfler case cited and followed the holding of the California court in In re Owens’ Estate, 62 Cal.App.2d 772, 145 P.2d 376. The award of the surviving spouse is not a debt of the decedent existing at his death but is a charge against the estate by virtue of statutory provisions. Defendants do not dispute the statement that the word “debts” as used in the Doerfler and Molner wills means debts owed by the decedent at the time of his death, but insist that this is not controlling in a comparison of the two wills because there is a clear and significant distinction in the language used in each will in creating the bequest to the surviving spouse. Defendants point out that the Doerfler will makes a bequest of a “one-third part of my estate” and after several additional specific bequests it terminates with the residuary clause of “all the rest, residue and remainder” and that the bequest of a “one-third part of my estate” is not in the least comparable to a bequest of “one-third of the rest, residue and remainder.” They argue further that “one-third part of my estate” although uncertain in amount, can be determined before payment of the other bequests and other obligations of the estate, whereas the provision for the benefit of the plaintiff of “one-third of all the rest, residue and remainder of my estate” is a bequest of an uncertain quantity and the “one-third” cannot be determined until the residue is determined, which can only be done after all debts, charges and obligations of the estate have been paid.

Defendants say that the phrase “rest, residue and remainder” means that part of the estate remaining after payment of the administration expenses and the surviving spouse’s award and cite Retzinger v. Retzinger, 239 Ill. App. 127 (reversed on other grounds in 331 Ill. 102), wherein the court, quoting from 40 Cyc. p. 1570, said (133):

“The words ‘rest and residue,’ in the absence of language showing a contrary intention, mean the estate remaining after the payment of charges, debts, and particular legacies, including the payment of any statutory allowance fixed by the court for the temporary maintenance of the widow and received by her for that purpose.”

Defendants assert that under the will and the applicable cases, the expense of administration and surviving spouse’s award must be paid before the executors can determine the residuary estate available for distribution for Trust Fund A and the trust estate.

The parties discuss paragraph (f) of Article Fourth directing “the payment out of principal of my trust estate, devised under this Article Fourth and to be treated as expenses of administration, chargeable against my said trust estate, Illinois inheritance taxes that may be assessed by reason of my death on account of the bequests and devises made under this Article Fourth of my will, and all federal estate taxes upon my entire estate, and I hereby waive on behalf of my estate, any right to recover from any person, any part of such taxes so paid.” Defendants say that under the doctrine of expressio unius est exclusio alterius the use of only the words “inheritance taxes” and “Federal Estate Taxes” without mentioning any other expenses of administration or other obligations normally a charge against the corpus of the estate, clearly shows an intention to exclude all other obligations from being an entire charge against Article Fourth and to limit the trust estate’s burden to its proportionate share thereof. Defendants state that the testator could have bequeathed all of his estate to his wife had he wished to do so, that by making bequests for the benefit of his grandchildren he was satisfying his personal wish and that in the absence of any expressed intention to the contrary, his wish was that deductions for expenses of administration and surviving spouse’s award should be made proportionately from both the share for the benefit of his wife and the share for the benefit of his grandchildren.

We are of the opinion that the reasoning in the Doerfler case supports the contention of plaintiff. Had the testator intended that Trust Fund A should be determined as one-third of his estate after satisfaction of expenses of administration and surviving spouse’s award, he could have done so by providing in the First Article that all his just debts, funeral expenses, expenses of administration and surviving spouse’s award be fully paid, or by providing in the Third Article that after payment of all debts, funeral bills, expenses of administration and surviving spouse’s award, one-third of all the rest, residue and remainder be given to the trustees of Trust Fund A, or by making a specific provision in some part of the will that the expenses of administration and surviving spouse’s award be charged ratably against the assets bequeathed in Articles Third and Fourth. The language of the First Article shows an intent that neither expenses of administration nor surviving spouse’s award be included before creating Trust Fund A in the Third Article.

We think that the words “to be treated as expenses of administration” in paragraph (f) of Article Fourth supports the position of plaintiff that the testator contemplated payment of the expenses of administration and surviving spouse’s award out of the assets devised in Article Fourth and not before setting aside the corpus of Trust Fund A. There is nothing in the will that says that Trust Fund A is to consist of one-third and that the trust estate under Article Fourth is to consist of “the other two-thirds” of the residuary estate. We find that the Third Article in giving one-third of all the rest, residue and remainder of the estate to the trustees of Trust Fund A means one-third of the estate after satisfying Articles First and Second. When Article Fourth gives all the rest, residue and remainder of the estate to the trustees of the trust estate it means all that remains after satisfying the provisions of the first three articles.

The will discloses a primary intention to provide for testator’s wife and that all other bequests be secondary thereto. It will be observed that the quotation from the Itetzinger case defining the words “rest, residue and remainder” is applicable “in the absence of language showing a contrary intention.” The Molner will indicates an intention that under the remainder clause of Article Fourth everything remaining after satisfying the preceding three articles be distributed to the trustees under Article Fourth. Article Third is not a residuary bequest. The true residuary bequest is in Article Fourth. The legal effect of the language of Article Third of the Molner will and of the Second Article of the Doerfler will, in the light of the other provisions of each will, is identical.

For the reasons stated the decree of the Superior Court is reversed and the cause is remanded with directions to enter a decree construing the will in accordance with the contentions of the plaintiff and granting her the other relief sought with respect to costs and fees.

Decree reversed and cause remanded with directions.

FRIEND, P. J. and NIEMEYER, J., concur.


source: Caselaw Access Project

author: JUDGE BURKE

license: Public Domain

text:
    Joan S. Sullivan, Appellant, v. Harris Trust and Savings Bank, Thomas Roger Sullivan, a Minor, Faryl Anne Sullivan, a Minor, Shawne Marie Sullivan, a Minor, Appellees, and Helen Shorley, Defendant.
    Gen. No. 46,674.
    First District, First Division.
    January 9, 1956.
    Released for publication February 27, 1956.

      Williams and Leonard, of Chicago, for appellant; Ednyfed H. Williams, and John M. Leonard, Jr., both of Chicago, of counsel.
    Brown, Fox, Blnmberg & Markheim, of Chicago, for Harris Trust and Savings Bank, appellee; Jacob Logan Fox, and Thane T. Swartz, both of Chicago, of counsel.
    Harry L. Kinser, of Chicago, guardian ad litem, for minor appellees and trustee of the interests of unborn persons.
   JUDGE BURKE

delivered the opinion of the court.

On July 12,1948, Louis T. Shorley of Chicago made his last will. He died on July 20, 1950. The will was admitted to probate and the Harris Trust and Savings Bank became executor. Under the Fourth paragraph of the will the residue of the estate passed to the bank as trustee. The decedent left as his only heirs at law Helen Shorley, his widow, and Joan S. Sullivan, his daughter by his first marriage. Thomas Roger Sullivan, Faryl Anne Sullivan and Shawne Marie Sullivan, minors, are the lawful issue of Joan S. Sullivan.

* Under the Sixth paragraph of the will the trustee is to pay to the widow $500 per month for life and to the daughter $400 per month for life. In the event of the daughter’s death before the termination of the trust the trustee is to pay to her lawful issue $400 per month ratably per stirpes and not per capita. The trustee is authorized to invade the principal of the trust estate to make these payments should the income therefrom be insufficient. Under the Seventh paragraph of the will the trust shall terminate on the death of the survivor of the widow and daughter and the trustee shall then deliver the remainder of the principal, together with all undistributed income therefrom, to such as shall then be living of the lawful children of the daughter and the then living descendents of the deceased lawful issue of the daughter per stirpes and not per capita. Under the Eighth paragraph of the will the trustee is authorized to pay the daughter or her descendants additional sums deemed by the trustee to be necessary or advisable for their support and maintenance, not to exceed $4,000 in any one year and not to be cumulative. The widow filed her written renunciation of the will and thereafter one-third of the total net estate was paid to her. The remainder aggregating the principal sum of $394,370.53 with income of $25,-739.24 after taxes, on the close of the administration of the estate, passed to the trustee. The trustee has paid and is paying to the daughter $400 per month pursuant to the Sixth paragraph of the will, and the sum of $4,000 per year authorized under the Eighth paragraph.

The daughter filed a complaint in chancery to construe the will and asked that income accumulated wrongfully in violation of the Thellusson Act of Illinois be paid to her as sole heir of decedent, or in the alternative that the accumulations of income be declared intestate property and be paid to her, and for an accounting. The trustee filed an answer. In a counterclaim the trustee also asked the court to construe the will and to ascertain and declare the persons entitled to receive the income from the estate. The chancellor appointed a lawyer as guardian ad litem for the minors and trustee for persons interested in the estate not now in being. In his answer to the complaint the guardian ad litem asserted that any income in excess of the payments provided in the will should be applied for the benefit of the minor defendants and unborn persons not in being. Plaintiff’s answer to the trustee’s counterclaim states that the language of the will as to the matters described in the counterclaim was not ambiguous, was governed by established principles of law and was determinable in any decree that might be entered pursuant to her complaint. The widow filed no pleading and was defaulted.

The executor paid to Helen Shorley her widow’s award and cash and other assets valued at $189,010.69 in full settlement of her claim to one-third of the estate. The executor’s final account was approved and it was discharged. The court found that the parties are entitled to a construction of the will by reason of ambiguity therein and decreed that the testator intended in his will that if any sums should be received as income by the trustee in excess of the amounts directed to be paid and actually paid by the trustee, the additional income received by the trustee should be retained by it as part of the principal of the trust estate, with all administrative and investment powers specified in the will with regard to the principal of the trust estate and should be distributed as the principal of the trust estate was directed to be distributed. The decree directed the trustee to retain any income theretofore or thereafter received in excess of the amounts paid by it pursuant to the provisions of the will, to invest the sums and to administer and distribute the same as provided by the will regarding the principal of the trust estate, except as to the income received after July 20, 1971. The decree determined that by virtue of the statute restricting accumulations in force at decedent’s death, the accumulation of income is permissible only for 21 years after decedent’s death, or until July 20, 1971; that the provision for the accumulation of income arising from the trust estate after July 20, 1971, and not distributed pursuant to the will, is invalid; that the excess income received by the trustee after July 20, 1971, will be intestate property and shall be paid by the trustee to the plaintiff if and for so long as she shall live after July 20, 1971; that plaintiff is the only person entitled to receive the excess income as decedent’s heir at law; that the widow has not asserted any right to receive that income and is in default; and that by her renunciation of the will and her receipt of one-third of the estate, she has no further right or claim in and to the excess income. The decree further determined that in view of the renunciation of the will by the widow, the true intent and meaning of the Seventh paragraph authorizing distribution of the trust estate with all the undistributed income therefrom at the death of the survivor of the widow and the daughter is that the distribution should be made at the death of the daughter, whether the widow shall then be living or not; that the testator’s only purpose in postponing distribution until the death of both the widow and the daughter was to provide a fund from which periodic payments could be made for the support of both these beneficiaries; and that by her renunciation of the will the widow relinquished all rights to any benefit under the will, including the right to receive such periodic payments and the right to have the trust under the will continued for her protection. The decree directed that the trustee, on the death of the daughter, deliver all the trust estate, whether principal or income, after deducting its charges, to all the then living children of the daughter and to the then living lawful descendants of any deceased children of the daughter. In testifying during the hearing of the ease on December 6, 1954, the plaintiff said that she was then 28 years of age, that the widow was 50 years of age and that the children were 6, 4 and 2 years of age. At the hearing an officer of the trustee testified that the trustee then had on hand income amounting to approximately $28,700 after deducting expenses of the trust estate and payments of $400 per month and $4,000 per year to the plaintiff. Plaintiff, appealing, requests that the decree be reversed and that the cause be remanded with directions to enter a decree construing the will as in violation of the Thellusson Act and that the accumulations of income be paid to her, or in the alternative that such accumulations be declared intestate property and be accounted for and paid to her as intestate property.

Plaintiff maintains that the accumulations of income of the trust estate if contemplated by the will are for a period longer than 21 years after decedent’s death and are illegal under the Thellusson Act; that the excess of income of the trust estate after the payments required by the will, estate expenses, payment of mortgages and liens constitutes accumulations; that these accumulations though not specifically directed or authorized, are contemplated by the will and necessarily result from the operation of the will and trust created thereby; that these accumulations might and probably would continue throughout the duration of the trust, which might well exceed 21 years after testator’s death under the language of the will or the decree; that under the language of the will the trust would continue during the lives of the widow and the daughter and would terminate on the death of the survivor; that this is the proper duration of the trust; that the decree that owing to the widow’s renunciation of the will, the duration of the trust was for the life of the daughter only, was error, disregarding the language of the will and testator’s intent and as accelerating contingent remainders to persons who cannot be ascertained until the termination of the trust; and that under the decree the trust and the accumulations thereunder might continue for over 21 years after the testator’s death. Plaintiff further contends that even though there is no express provision for accumulation for 21 years, if accumulations necessarily will result from the operation of the will and the trust created thereby which may continue for over 21 years, directions to accumulate will be implied and are within the prohibition of the statute ; that since the illegal accumulations are in the residuary clause of the will and the residuary interests are contingent, plaintiff as heir is now entitled to the accumulations as intestate property; and that in the alternative, if no provision is made for these accumulations of income by the will, the accumulations are intestate property to which the plaintiff now is entitled as decedent’s heir.

We are asked to decide whether the Thellusson Act of Illinois, Sec. 153, Ch. 30, Ill. Rev. Stat. 1951 [Jones Ill. Stats. Ann. 135.02], in effect when Louis T. Shorley died on July 20,1950, is applicable to the will. This Act was amended in 1953 to authorize accumulations for a life or lives in being, plus the additional period of 21 years. The amendment does not affect the wills of testators who passed on before the Act took effect and therefore has no application to the case at bar. We are satisfied that the will contemplates that any excess or surplus income should be held by the trustee and eventually distributed along with the corpus of the estate to the plaintiff’s children or their descendants. The Fourth paragraph bequeaths the remainder of the estate to the trustee and defines the uses and purposes for which the trustee is to hold the estate. Subparagraph (a) of the Fourth paragraph authorizes and directs the trustee to take possession of the estate and the trustee is given broad powers in investing and reinvesting the trust estate. The language of this clause negatives the theory that any portion of the estate, whether of principal or income, could be considered intestate property. The will gives the entire residuary estate and grants broad power of investment and reinvestment which also .apply to the income in excess of the amounts specifically directed to be distributed as to corpus. Other provisions of the will indicate the testator’s intention that the testamentary trust was meant to be a complete disposition of both principal and income, and that it was intended that the trustee be vested with the necessary powers to completely handle the residuary estate.

Subparagraph (j) of the Fourth paragraph indicates that all income of the trust estate was intended by the testator to be used first for the payment of costs and expenses of administering the trust and protecting, managing and caring for the trust estate and secondly that the balance of income be distributed and applied as directed in the will. The use of the word “applied” indicates that the testator contemplated that not all of the income would necessarily be distributed to the income beneficiaries and that the trustee would or might accumulate and retain income not needed to satisfy payments directed to be made to the widow and plaintiff. Subparagraph (e) of the Fourth paragraph that “the power and authority herein conferred upon the trustee to establish such reserves out of income shall not, nor shall any other power hereby conferred upon the trustee, be construed to authorize such accumulations to be made for any longer period of time than shall be permitted by law at the time of my death,” implies that the trustee might have occasion to accumulate income under circumstances not related to the specific authorization, and that in that event the accumulations should not exceed the legal period. This clause contemplates that there may be additional accumulations and limited all accumulations to the period permitted by law.

The Seventh paragraph of the will in the words “together with all undistributed income therefrom” contemplates that there may be undistributed income accumulated which is to be distributed ultimately to such as shall then be living of the lawful children of plaintiff and to the then living lawful descendants of any deceased children of plaintiff ratably per stirpes and not per capita. The testator intended that plaintiff and his widow should have only a fixed income for life in the trust estate and did not intend that either should share in any additional income above the amounts directed to be paid to them. A construction of the will by which plaintiff would receive the current benefit of excess income would be contrary to the testator’s intention. He intended that the remaindermen should have the benefit of any income in excess of specific current requirements.

The Illinois Thellusson Act does not operate to make illegal the provisions of a will for accumulations of income beyond any of the permitted periods stated in the Act. The Act was not intended to defeat the intention of a testator designating who should be entitled to property under a will, but only to prevent indefinite accumulations of wealth. The argument of plaintiff that since there may be accumulations of income in the testamentary trust for an extensive period of time in violation of the Act and that she is presently entitled to the accumulations as intestate property, is without merit. It is not the purpose of the statute to defeat the intention of the testator respecting the persons entitled to property under his will, but its purpose is limited to prevent indefinite accumulations of wealth. It only limits the period of accumulation, and the produce beyond that limit goes to the same person who would have been entitled to it if the accumulation had not been directed. The statute on which plaintiff relies says that the “rents, issues, profits and produce of such property so directed to be accumulated shall, so long as the same shall be directed to be accumulated contrary to the provisions of this Act, go to and be received by such person or persons as would have been entitled thereto if such accumulation had not been directed.” It is not every accumulation which is condemned, but only accumulations for so long as they shall be contrary to the statute. See French v. Calkins, 252 Ill. 243; Kolb v. Landes, 277 Ill. 440; Carlberg v. State Savings Bank & Trust Co. of Moline, 312 Ill. 181; Webb v. Webb, 340 Ill. 407. The case of May v. Marx, 299 Ill. App. 442, cited by plaintiff, does not support her position. The Pennsylvania cases cited by her are not applicable to tbe Illinois Act. Our Supreme Court has construed tbe Illinois Act which bolds that a violation of tbe Act does not invalidate any provision of tbe will, but only operates to prevent indefinite accumulations of income beyond tbe statutory permitted period. It is our duty to follow tbe law as laid down by our Supreme Court. It cannot now be definitely determined whether there will be accumulations of income after 21 years from tbe death of Louis T. Sborley. Tbe decree provides that if there are accumulations of income occurring after July 20,1971, that these shall be paid to tbe plaintiff as the sole heir at law having an interest therein. Our Supreme Court bas generally refused to make such determinations until one of tbe permitted periods bas expired, on tbe ground that it cannot be definitely ascertained whether there will be accumulations in violation of tbe statute until tbe permitted period bas run its course. No one bas complained about this provision of tbe decree.

Plaintiff criticizes that part of tbe decree recognizing that since tbe widow renounced tbe will, tbe provision for distribution at tbe time of tbe death of tbe survivor and plaintiff is to be read as if tbe widow had already died and distribution is to be made at tbe death of tbe daughter. A person who is not injured by an alleged error in a decree bas no right to argue that it be reversed. From a legal standpoint it makes no difference to plaintiff whether after her death tbe estate is distributed at once to her children and tbe then living lawful-descendants of deceased children or held in trust until tbe widow dies. Plaintiff makes no showing that she bas been injured by this provision of tbe decree and no other party bas appealed from tbe decree. Only a party adversely affected by the decree may appeal therefrom, Glos v. Swigart, 156 Ill. 229; McClary v. Grand Lodge Brotherhood of Railroad Trainmen, 282 Ill. App. 77; C. J. S. Vol. 5, Sec. 1676, p. 802.

Plaintiff asserts that since the illegal accumulations are in the residuary clause of the will and the residuary interests are contingent, plaintiff as heir is now entitled to the accumulations as intestate property. The guardian ad litem states that the minor defendants and unborn persons have an indestructible remainder interest in any income accumulated within the periods permitted by law. He points out that our Supreme Court has held that the remainder interests are vested where the right of enjoyment is postponed for the convenience of the estate rather than for reasons personal to the legatee. Scofield v. Olcott, 120 Ill. 362 ; Carper et al. v. Crowl et ah, 149 Ill. 465; Ashmore v. Newman, 350 Ill. 64. We do not think it is necessary to decide whether the interest of the remaindermen is vested or contingent. Section 40, Ch. 30, Ill. Rev. Stat. 1955 [Jones Ill. Stats. Ann. 110.236], provides that “no future interest shall fail or be defeated by the determination of any precedent estate or interest prior to the happening of the event or contingency on which the future interest is limited to take effect.” Whether the interest of the minor defendants and unborn persons in the income be considered vested or contingent, they are indestructible.

For the foregoing reasons the decree of the Superior Court of Cook County is affirmed.

Decree affirmed.

FRIEND, P. J. and NIEMEYER, J., concur.


author: JUDGE FEINBERG

text:
    Henry Kaufman, Appellant, v. Melvin Goldman et al., Appellees.
    Gen. No. 46,713.
    First District, Third Division.
    January 11, 1956.
    Rehearing denied February 23, 1956.
    Released for publication February 29, 1956.
    Jerome H. Stein, of Chicago, for appellant.
    Melvin L. Goldman, of Chicago, for appellees.
   JUDGE FEINBERG

delivered the opinion of the court.

Plaintiff appeals from an order dismissing his complaint at his costs. The complaint consisted of two counts. The first count sought damages under section 45 of the Business Corporation Act (Ill. Rev. Stat., Ch. 32, § 157.45 [Jones Ill. Stats. Ann. 32.045]), and Count II was for mandamus to compel production of certain corporate books, records and papers, for examination by plaintiff.

Defendants filed a sworn answer to Counts I and II, to which plaintiff filed a reply. Upon defendants’ motion for judgment on the pleadings, the court sustained the motion and entered judgment against plaintiff. Plaintiff moved to vacate the order, and to allow plaintiff to file an amended petition for writ of mandamus and complaint at law within 5 days. This motion the court denied. No amended complaint appears to have been presented to the court below, nor is it included in the record before us. Plaintiff is in no position to question the propriety of the ruling denying said motion.

Count I of the complaint alleged in substance that plaintiff is the registered owner and holder of record of 180 shares, out of a total issue of 400 shares, and “the equitable owner and holder of 190 shares . . . of the capital stock” of Associated Heating Supplies, Inc., an Illinois corporation; that the actual value of said shares of stock is in excess of $100,000; that defendant George Kaufman is the president, treasurer and registered agent of said corporation, and the owner of 190 shares of its capital stock; that defendant Ida Kaufman is vice-president and secretary, and the owner and holder of 20 shares of capital stock; that defendant Conrad Kaufman is assistant vice-president and an executive employee and manager of said corporation and its business; and that defendant Melvin Goldman is the agent and attorney for the corporation, and has in his possession certain books and records of the corporation.

It is further alleged that plaintiff, as such shareholder, by virtue of the statutes of the State of Illinois, had the right to examine by himself, or his agent and attorney, the books and records of account, and minutes and records of the shareholders of said corporation; that on or about June 29, 1954, plaintiff demanded in writing of each of the defendants that they furnish and allow him to examine records of account and information with respect to certain corporate transactions, all as set forth in a letter from plaintiff to the defendants, dated June 29,1954, a copy of which letter is attached to the complaint and made a part thereof; that on July 9, 15, 22 and 27, and August 3 and 9,1954, plaintiff presented himself in person at the office of the corporation for the purpose of examining and maiding extracts from the records of account and information with respect to those transactions; and that on each such occasion defendants failed to furnish and make available to plaintiff or to allow him to examine and make extracts from the records of account and information, and have refused contrary to the statute; and prayed for judgment against each of the defendants in the sum of $10,000, together with reasonable attorney’s fees and costs.

Count II realleges the matters in paragraphs 1 through 10 of Count I, and attaches a copy of the written demand dated May 23, 1953, upon each of the defendants that they furnish and allow him to examine said books and records of account and information with respect to the corporate transactions specifically set forth in said letter; that at the annual meeting of the stockholders on June 2,1953, and of the board of directors on June 6, 1953, as well as at a board meeting-held on December 19,1953, said defendants refused to furnish and allow plaintiff to examine said records; that again, on January 29, 1954, plaintiff made a written demand upon the defendants that they produce at the office of the corporation the books and records and allow him to examine them, as set forth in said letter attached to the complaint and made a part thereof. The count prayed for the issuance of a writ of mandamus to compel such production.

The answer in detail alleged that the records, books and papers requested by plaintiff had been submitted to plaintiff, and that he had examined the same and had fully informed himself as to all of the information requested in his written demands attached to the complaint. Attached to the answer and made a part thereof were replies by defendants to the several written demands made by plaintiff for the production of the books, records and papers. These letters, attached to the answer, clearly disclose that defendants had at all times made the books, records and papers available to him, and were then available to him if he desired to examine them. The answer further disclosed that there had been a prior action brought in the Circuit Court of Cook County against these defendants, seeking the same relief, and that said action was dismissed and judgment there entered against plaintiff, from which plaintiff appealed.

The judgment in said prior action was appealed to this court (6 Ill.App.2d 207 (Abst.)), and we affirmed it. The judgment there was entered upon the admitted facts in the pleadings. The complaint there alleged substantially the same facts, to which a sworn answer was filed and no reply filed to the answer. We there said that the failure to file a reply admitted the facts set up in the answer, and upon such admitted facts the court was justified in dismissing the complaint and entering judgment for defendants.

It also appears from the present pleadings that at the time of the entry of the judgment in the prior action appealed from, there was then also pending in the Superior Court of Cook County another action between these parties, seeking relief upon substantially the same facts alleged in the instant action and, in addition, for a dissolution of the corporation and the appointment of a receiver. The instant action is therefore the third action brought by plaintiff.

Plaintiff, upon oral argument, conceded that defendant Melvin Goldman should not have been joined as a defendant, since whatever corporate records he had in his possession were in his representative capacity as attorney for the corporation, while performing some legal work for it.

The pleadings in the instant case, which include the various letters attached to them, we think fail to allege or establish a proper purpose upon the part of plaintiff to entitle him to examine the corporate books, records and papers. Morris v. Broadview, Inc., 385 Ill. 228. In Sawers v. American Phenolic Corp., 404 Ill. 440, it was said:

“He [plaintiff] must be seeking something more than a satisfaction of his curiosity and not be conducting a general fishing expedition.”

An illustration of the lack of proper purpose on the part of plaintiff is his demand for production of the record of stockholders. It clearly appears from plaintiff’s complaint that there are only three stockholders, and he names them together with the amount of stock each owns.

Defendants’ claim of res adjudicata is well-founded. When we affirmed the judgment in the prior action (6 Ill.App.2d 207 (Abst.)) upon the admitted facts in the pleadings, it was an adjudication against the plaintiff as to the facts there determined. Any matter of recovery which might have been presented in the former suit is embraced in the rule of res adjudicata and is concluded by the earlier judgment. Leitch v. Hine, 393 Ill. 211; Adams v. Pearson, 411 Ill. 431.

We think there should be an end to the repetitious litigation. This court in Bart v. Pine Grove, Inc., 326 Ill. App. 426, 430, quoted with approval the statement in Stoll v. Gottlieb, 305 U. S. 165:

“It is just as important that there should be a place to end as that there should be a place to begin litigation.”

We think the judgment is correct and it is therefore affirmed.

Affirmed.

LEWE, P. J. and KILEY, J., concur.


text:
    Carl R. Sjoberg, Plaintiff Below-Appellee, v. Joseph T. Ryerson & Son, Inc., and Allegheny-Ludlum Steel Corporation, Defendants Below-Appellees, Carrier Corporation, for Use of Liberty Mutual Insurance Company, Intervening Petitioner Below and Appellant.
    Gen. No. 46,741.
    First District, Third Division.
    January 11, 1956.
    Released for publication February 29, 1956.

      B. S. Quigley, and Arrington and Healy, all of Chicago, for appellant; W. Russell Arrington, Virgil C. Lutrell, and John G. Poust, all of Chicago, of counsel.
    Norman Peters, and John G. Phillips, both of Chicago, for appellee.
   JUDGE FEINBERG

delivered the opinion of the court.

Plaintiff brought this action for personal injuries against defendants. He had previously filed his claim under the Workmen’s Compensation Act for the same injuries, and was allowed compensation for permanent and total disability plus a pension for life, which at the time of the institution of this suit was being paid to plaintiff by his employer, the Carrier Corporation, petitioner herein. The employer, having notice of this suit, presented his petition for leave to intervene for the use of its insurance carrier, the Liberty Mutual Insurance Company, who carried the insurance for the employer covering the accident in question.

The petition, among other things, alleged that the injuries to plaintiff, its employee, were caused solely by the negligence of defendants; that the petitioner and its employees were at all times in the exercise of all due care and diligence for the personal safety of plaintiff ; and prayed that any award, judgment or fund in favor of plaintiff be impressed with a lien in favor of petitioner, as permitted by the Workmen’s Compensation Act, and asked leave to intervene as a party. The court, upon such petition, entered the following order:

“It is Ordered that the plaintiff and the defendants by their respective attorneys hereafter give notice to said Carrier Corporation, for nse of Liberty Mntnal Insurance Company, of any judgment which may be entered in this cause in favor of plaintiff so that said Carrier Corporation, for the use of Liberty Mutual Insurance Company, may move for such order or orders to which it may be entitled in this cause for the protection of any lien which said Carrier Corporation, for use of Liberty Mutual Insurance Company, may show itself to be entitled on any judgment which may be entered in favor of the plaintiff in the above entitled cause. Leave to Carrier Corporation to intervene is denied.”

It is from this order petitioner appeals.

Section 138.5 of the Workmen’s Compensation Act (Ill. Rev. Stat., Ch. 48 [Jones Ill. Stats. Ann. 143.68]), as amended in 1953, gives the employer a lien for such sum as it is required to pay to the employee under the Workmen’s Compensation Act, upon any award, judgment or fund, out of which the employee might be compensated in any suit or action brought by the employee against a third party solely responsible for the accident and injury. The section further provides:

“In such actions brought by the employee or his personal representative, he shall forthwith notify his employer by personal service or registered mail, of such fact and of the name of the court in which such suit is brought, filing proof thereof in such action. The employer may, at any time thereafter join in said action upon his motion so that all orders of court after hearing and judgment shall be made for his protection. No release or settlement of claim for damages by reason of such injury or death, and no satisfaction of judgment in such proceedings, shall be valid without the written consent of both employer and employee or his personal representative, except in the case of the employers, such consent shall not he required where said employer has been fully indemnified or protected by Court order.”

It will thus be seen that the statute expressly provides that the employer may, at any time after such third party action is brought by the employee, join in said action upon his motion, so that all orders of court, after hearing and judgment, shall be made for his protection.

Even without express statutory provision for joining in an action, it was held in Smith v. Louisville & N. R. Co., 381 Ill. 55, 57, and Standidge v. Chicago Rys. Co., 254 Ill. 524, that an attorney has a right to file a petition for his lien under Ch. 13, § 14, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 9.13], in the original action brought by the client, though the statute granting the attorney a lien contains no provision for intervention or the right of the attorney to join in the action to enforce his lien.

It was agreed between the parties, upon oral argument, that the real point of contention between them is, to what extent should the intervening petitioner be permitted to participate in the conduct and trial of the law suit? Plaintiff’s position before us is that he is not opposed to the petitioner being allowed to be made a party to the action by intervention, for the protection of its lien, provided it is not permitted to participate in the conduct or trial of the suit. Plaintiff seeks to avoid any conflict which could exist between him and the employer, as to the proper course and conduct of the trial.

We think there is merit in plaintiff’s position. Conceivably, there could be such conflict which might seriously jeopardize a recovery in the action. The primary object of the statute is to afford the employer the protection of his lien for the amount the employer is obligated to pay the employee under the Workmen’s Compensation Act and no more. He would have no interest in any recovery beyond that amount, whereas the employee’s objective is more substantial, since he would be seeking to recover full'damages for his injury, which could be much more than that allowed by the Workmen’s Compensation Act. No lien of the employer could attach to the amount in excess of that paid or to be paid by the employer. No case has been cited to us which defines the right of the employer to participate in the trial of the suit. It may well be that no one has seriously considered that an employer has a right to participate in the trial of the suit, and therefore the question seems never to have been raised or decided. Our search has not revealed any decision upon that particular question.

We believe the proper and just rule to apply in this type of situation is to allow the employer to join the action by intervention for the purpose allowed by the statute, and provide in the order that such intervention shall not extend to the intervening petitioner the right to participate in the conduct or trial of the suit, without the consent of plaintiff.

The court was in error in denying leave to the petitioner to intervene. The order is reversed and the cause is remanded with directions to strike out from the order appealed from “Leave to Carrier Corporation to intervene is denied,” and to add to said order the following: Leave is granted to Carrier Corporation to intervene, and such intervention shall not permit the intervening petitioner to participate in the conduct or trial of the suit unless consented to by plaintiff.

Reversed and remanded with directions.

LEWE, P. J. and KILEY, J., concur.


author: JUDGE FEINBERGr

text:
    Northern States Company, Inc., Plaintiff-Appellee, v. A. Finkl & Sons Company, Defendant-Appellant, and Patrick J. Collins, Defendant. A. Finkl & Sons Company, Counterclaimant-Appellant, v. Northern States Company, Inc., Bituminous Casualty Corporation, and Patrick J. Collins, Counterdefendants-Appellees.
    Gen. No. 46,744.
    First District, Third Division.
    January 11, 1956.
    Rehearing denied February 29, 1956.
    Released for publication February 29, 1956.
    Hinshaw, Culbertson, Moelmann & Hoban, of Chicago, for defendant-appellant and counterclaimantappellant; Oswell Gr. Treadway, John M. Moelmann, and John L. Kirkland, all of Chicago, of counsel.
    Andrew J. Farrell, of Chicago, for plaintiff-appellee and counterdefendants-appellees; Thomas J. Weithers, of Chicago, of counsel.
   JUDGE FEINBERGr

delivered the opinion of the court.

Plaintiff filed a complaint for a declaratory judgment that an indemnity agreement given by it, as contractor, to defendant A. Finid & Sons Company, did not cover an accident occurring to defendant Collins, an employee of plaintiff. Defendant Finid filed a counterclaim for declaratory judgment that said indemnity did cover the accident in question. A hearing by the court resulted in a decree in favor of plaintiff and its insurance carrier, declaring that said indemnity did not cover said accident.

It appears from the evidence that defendant Collins, an employee of plaintiff, was struck by a crane owned and maintained by defendant Finid and operated by one of the latter’s employees on defendant’s premises. The crane was being used to unload some pieces of amorphous carbon, which belonged to defendant Finid, to be used in testing the electromelt furnaces. The operation was directed by defendant’s superintendent. Plaintiff contracted to do the electrical work for the furnaces to be used in the manufacture of various steel products.

The contract between plaintiff contractor and defendant Finid contained the following provision:

“It is expressly understood and agreed that the Contractor shall be responsible for any and all injury due to damage to any person and/or property, including loss of human life arising directly or indirectly from or in connection with work performed or to be performed under this contract, including extra work, and shall hold the Owner harmless of any and all loss or damage from such injury, damage or death. The Contractor further agrees to maintain such insurance as will fully protect both the Contractor and the Owner from any and all claims under any Workmen’s Compensation Act or Employer’s Liability Laws, and from any and all other claims of whatsoever kind or nature for the damage to property or for personal injury, including death, made by anyone whomsoever which may arise from operations carried on under this contract, either by the Contractor, any Subcontractor or by anyone directly or indirectly engaged or employed by either of them.” (Italics ours.)

A scaffold had been erected above the 40-ton crane, and Collins on the day of the accident in question was working on the overhead lighting system from the top of this scaffold. Shortly before noon on the day of the accident, Collins left the scaffolding, walked about 60 feet west on the north overhead crane rail toward a ladder, to descend to the ground level. The foreman and other men who were working with him walked down a runway of the crane to a ladder. No one saw Collins until a few minutes after the accident happened.

The evidence discloses that defendant’s employee, operating the crane involved in the accident, rang a bell before starting the crane. Apparently, part of the crane came in contact with Collins, pinning him against a wall, causing the injuries complained of. Thereafter Collins made claim against plaintiff contractor under the provisions of the Workmen’s Compensation Act, and a settlement was made in the sum of $7250.

Collins also filed suit in the Circuit Court for his personal injuries, charging defendant Finkl with various acts of negligence. Defendant Finkl notified plaintiff contractor and the insurance carrier of the suit, and demanded that plaintiff hold defendant harmless, pursuant to the indemnity provision, and to defend said personal injury suit. Plaintiff and its insurance carrier refused to undertake the defense of the suit or to hold the owner harmless, on the ground that the indemnity does not cover the accident due to the alleged negligence of Finkl. The Bituminous Casualty Company was the insurance carrier for plaintiff.

The only question presented upon this appeal is whether the indemnity is broad enough to cover the accident in question.

Russell v. Shell Oil Co., 339 Ill. App. 168, involved a similar question. There the indemnity was not as broad as the one before us. It read:

“. . . agreed to indemnify and hold defendant harmless from any and all claims for injury to persons, including plaintiff’s [Russell’s] employees, resulting from or arising in connection with any of his operations.”

It was there contended that the indemnity did not cover claims for damages arising out of the negligence of defendant, its agents, servants or employees, and therefore was not to be construed as indemnifying defendant against its own negligence. In that case the injured employee of the contractor was engaged in painting a pole on the premises of the owner. It was alleged that the pole was maintained in an unsafe and dangerous condition, and that while the injured employee was working on the pole, it pulled out of the earth, causing him to fall and resulting in his injuries. This court, speaking through the learned late Justice Scanlan, held that the negligence of either the contractor or the owner did not enter into the proper construction of the indemnity agreement, because the injury resulted from or arose in connection with the contractor’s operations, against which he agreed to hold defendant harmless.

It will thus be seen that the language of the indemnity in the instant case, “that the Contractor shall be responsible for any and all injury due to damage to any person and/or property, . . . arising directly or indirectly from or in connection with work performed or to be performed under this contract . . . and shall hold the Owner harmless of any and all loss or damage from such injury,” (italics ours), is much broader than that in the Eussell ease. It does not exclude a case of injury to “any person” due to negligence of Finid. We think the reasoning and holding in the Eussell case should be applied to the instant case.

Under similar facts, the reasoning and holding in Aluminum Co. of America v. Hully, 200 F.2d 257 (8th C. A.), which quoted with approval from the Eussell case, are also applicable.

Other questions raised need not be considered.

The court below should have entered a decree declaring that the indemnity in question covers the accident to Collins.

The decree of the Superior Court is reversed and the cause remanded with directions to enter a decree in conformity with this opinion.

Eeversed and remanded with directions.

KILEY, J., concurs.

LEWE, P. J., took no part.


author: JUDGE KILEY

text:
    Joseph Perry, Appellee, v. Joseph Eson, Appellant.
    Gen. No. 46,814.
    First District, Third Division.
    January 11, 1956.
    Released for publication February 29, 1956.

      John E. Toomey, and John P. Coghlan, both of Chicago, for appellant.
    Denenberg and Nothin, of Chicago, for appellees; Joseph B. Denenberg, Nathan T. Nothin, and Harry Gr. Fins, all of Chicago, of counsel.
   JUDGE KILEY

delivered the opinion of the court.

This is an interlocutory appeal by defendant from an order restraining him from writing bonds in any of the Cooh County criminal courts.

The parties made a partnership agreement March 30, 1951, under which defendant was to write bail bonds in Cook County courts using plaintiff’s collateral. The agreement provided for plaintiff’s investment of capital, being a $7,000 deposit required to authorize defendant to engage in the business. This sum was established in the agreement as a debt due plaintiff from the partnership. Defendant’s contribution was to be his services. The profits and losses were to be divided equally, defendant was to keep books of account and was bound to account weekly for all transactions. Between December 31st and January 10th, as each year ended, a full accounting was to be made. Defendant was to devote “all his time and attention” to the work and was not to assign his interest or any part thereof to third persons. If either wished to retire from the business he was required to give not less than 15, nor more than 20, days notice to the other, and thereafter defendant was not to exercise any of his previous “rights or powers” under the agreement. If the partnership was dissolved for any reason defendant was not to solicit, at any time, the partnership clients or to disclose its clientele to any one and he “shall not engage in the business of a bondsman for a period of five (5) years thereafter.” If either partner elected to retire or if defendant became disabled, or if “either shall be guilty of misconduct of such a character as to render it impracticable to carry on the partnership, then and in any event this partnership shall cease and terminate.”

Plaintiff alleged that defendant had not made the required accounting; that a breach of the agreement thereby resulted and the agreement had been terminated; and that despite the breach and termination, defendant is continuing to write bonds in violation of the agreement not to engage in the business for five years upon termination. Plaintiff asked for an accounting and injunction to restrain defendant in accordance with the negative covenant. Defendant answered, denying failure to account properly, the breach and the termination of the agreement. He denies continued writing of bonds on plaintiff’s securities and denies “legal conclusions” pleaded by plaintiff with respect to the negative covenant. He alleged affirmatively that plaintiff, without defendant’s consent, brought another person into the partnership to share in the profits and thus plaintiff was guilty of “misconduct of such a character . . . to . . . terminate” the partnership ; that plaintiff had not given notice of his election to retire as required in the agreement; and that the agreement is illegal in so far as it purports to restrain defendant from his means of earning a livelihood.

The question on appeal is whether the chancellor abused his discretion in deciding that the order was necessary to preserve the equitable rights of the parties until a decision could be made on the merits of the case. Mayer v. Collins, 263 Ill. App. 219, 221.

The answer depends upon whether it is probable that plaintiff will succeed on the merits (Chicago Motor Coach Co. v. Budd, 346 Ill. App. 385) and the relative advantages and harm likely to be enjoyed or suffered in maintaining the status quo. Mayer v. Collins, 263 Ill. App. 219.

The only basis alleged for termination of the partnership, the failure to account properly, is denied by defendant’s sworn answer. Thus, the chancellor in restraining defendant presumably anticipated the likelihood that plaintiff would prevail on the issue. But there is no allegation that plaintiff gave defendant the notice prescribed for termination and there is nothing in the pleadings to justify the anticipation of plaintiff’s success.

Also the injunction grants plaintiff virtually the substantial remedies he seeks, because defendant is restrained from writing bonds; he is not limited to those written on plaintiff’s security. This goes beyond the rightful scope of the temporary injunctive remedy. Chicago Motor Coach Co. v. Budd, 346 Ill. App. 385.

Plaintiff, to sustain the order, argues that defendant’s answer admits a cause of termination, i.e., plaintiff’s wrongful conduct, and thus that the pleadings admit a cause of termination. The odd effect of this contention is to say that the chancellor could have foreseen that defendant would prove his affirmative defense of plaintiff’s misconduct and thus justify restraining defendant. The situation presumed by this contention brings it within the following rule. “The contract being broken by appellant without right operated to relieve appellee from the further performance of any covenant restricting her from engaging in business of the same nature. . . .” M. M. Mitchell Co. v. Mitchell, 134 Ill. App. 214, 216. We see no merit in the contention.

Were the injunction to remain in effect the result would be the deprivation of defendant of his means of livelihood, with the only apparent benefit to plaintiff, taking defendant’s affirmative defense as true, coming from his own misconduct. Thus the balance of advantage and harm is in favor of defendant.

For these several reasons we are of the opinion that the chancellor abused his discretion in granting the injunction. We need consider no other points raised. The order for temporary injunction is reversed.

Order reversed.

LEWE, P. J. and FEINBERG, J., concur.


text:
    People of State of Illinois, Defendant in Error, v. Charles F. White, Plaintiff in Error.
    Gen. No. 46,788.
    First District, Third Division.
    February 1, 1956.
    Released for publication February 24, 1956.

      Edward J. Fleming, of Chicago, for plaintiff in error; Charles F. White, pro se, of Chicago, plaintiff in error.
    John Gfutknecht, State’s Attorney of Cook Connty, of Chicago, for defendant in error; Gordon Nash, Charles D. Snewind, Francis X. Riley, and William Sylvester White, Assistant State’s Attorneys, all of Chicago, of connsel.
   JUDGE FEINBERG

delivered the opinion of the court.

Plaintiff in error, a member of the bar, appeals from an order finding him guilty of direct contempt of court and assessing a fine of $100 against him.

The finding of contempt is predicated upon his refusal to comply with a verbal direction of the court to produce a photostatic copy of a witness’s statement. There was on trial before the court a personal injury suit against the Pennsylvania Railroad, plaintiff in error representing the railroad. He called Otto J. Keller, an occurrence witness, on behalf of the railroad. The witness was not interrogated on direct examination about any. statement he had given shortly after the accident involved in the suit on trial, nor was it exhibited to him on direct examination. His testimony on direct examination showed no need to refresh his recollection by the statement in question. On cross-examination it developed the witness Keller, before appearing on the witness stand, had been to plaintiff in error’s office for interview and interrogation concerning the accident.

It further appears that plaintiff in error had in his office a photostatic copy of the original statement the witness had given to a claim agent, and that the witness did not read the statement in plaintiff in error’s office, but it was discussed with him. The following then transpired upon cross-examination:

“Q. Where did you see Mr. White?
“A. Up in his office.
“Q. And when you talked about it then did you see any statement then?
“A. Yes, sir, I did.
“Q. What statement did you see ?
“A. Well, the statement I gave Mr. Whipple.
“Q. Was it up there at the time? Did Mr. White have it? He did have it? Tell me, did he have it or didn’t he?
“A. Yes.
“Q. Did it have your signature on it ?
“A. Yes, sir.
“Mr. White: I am going to object to all this, if the Court please.
“The Court: Overruled.
“Mr. Coghlan: Q. Now, and it was signed by you?
“A. Yes.
“Q. Sir?
“A. Yes.
“Mr. Coghlan: May I have it, please ?
“Mr. White: No, sir. I take exception on that conduct and I want to he heard on a motion.
“Mr. Coghlan: The witness has used the document to refresh his recollection.
“Mr. White: I want to be heard on a motion.
“The Court: Very well. We will retire to chambers and the reporter will come in, please.”

Out of the presence of the jury, plaintiff in error moved to declare a mistrial because of the prejudicial conduct of counsel in making a demand for the statement in the presence of the jury. This motion was overruled. When the hearing resumed in the presence of the jury, the witness was further cross-examined as to whether the statement, which was discussed in plaintiff in error’s office but was not read by the witness, refreshed his recollection. The record discloses the following questions and answers:

“Q. Did it refresh your memory?
“A. Well, it probably did some.
“Q. What did it refresh your memory about ?
“Mr. White: This is all objected to, if the Court please.
“The Court: Overruled.
“The Witness: A. Well, it refreshed it this much, I remembered about the motorcycle going through under the gate.
“Mr. Coghlan: Q. Up to the time you read the statement or after you went over it, you did not remember the motorcycle going through the gate; is that right?
“Mr. White: That is objected to.
“The Court: Overruled.
“The Witness: A. Well, I still knew about it, you know.
“Mr. Coghlan: Q. Please. You said it refreshed your recollection.
“Mr. White: Let him finish his answer.
“Mr. Coghlan: Q. About the motorcycle going through the gate?
“The Court: Let him finish his answer. Finish your answer.
“The Witness: A. The minute they notified me I was to be a witness up here about what the accident was, then I remembered about the motorcycle going through under the gate. That was all.”

Then followed another demand by counsel for the production of the statement of the witness referred to, and again plaintiff in error objected to the “flagrant misconduct” of counsel in repeating the demand and renewed his motion to withdraw a juror and declare a mistrial. Plaintiff in error stated to the court:

“I say, for the record, I do not have that statement, I never did have it. I never saw it. I did have a photostatic copy in my office a week or so ago. I do not have it here.”

The record further discloses the following:

“Mr. Coghlan: Do you have the photostatic copy with you today, sir?
“Mr. White: Not here.
“The Court: No?
“Mr. Coghlan: Will you send to your office and procure the copy of the statement, please?
“Mr. White: I will not.
“The Court: That leaves me no alternative than to enter an order upon you to produce the photostatic copy. The motion for a mistrial is denied. Counsel has a right to demand the document, as I understand the law. You refuse to produce it, I will have to enter an order upon you to do so in the presence of the jury.
“Mr. White: I do not think you should, Judge.
“The Court: That is the way we will do it.”

Whereupon, the following proceedings were had in the courtroom, in the presence of and hearing of the jury:

“The Court: The motion for a mistrial is denied. Mr. White, will you produce the statement?
“Mr. White: On the basis I stated, under the Supreme Court rules and decision I cited, the statement, that is not mine. It is improper. It is a statement prepared in the preparation of the defense of a law suit and, in my opinion, counsel is not entitled to it.
U
“The Court: . . . The Court has considered the decision by both sides. The Court is of the opinion that the decisions cited by Mr. White are not applicable to the situation. For that reason, the Court orders Mr. White to produce the statement.
“Mr. White: I do not have it.
“The Court: Do you have it at your office?
“Mr. White: I have a photostatic copy.
“The Court: Will you produce it ?
“Mr. White: No.
“The Court: You refuse to produce the photostatic copy?
“Mr. White: Yes.
“The Court: Which you do have at your office?
“Mr. White: Yes.
“The Court: All right. Proceed.”

The court then ordered a recess, and upon resumption of the hearing, the following appears of record:

“The Court: As I understand the law, while the court is in session, if the Judge orders an attorney to do something, if he had no right to order him to do it, the attorney should do it. Whether the order is good or bad, it must be obeyed. If the order was wrong and you produced the statement, then you would have the reversible error.
“You cannot stand in a courtroom in the presence of the jury during a trial and defy the Court. . . .
“For that reason, I find you guilty of direct contempt of court.
“Having known you, Mr. White, for about 30 years, we have been good friends, you were a gentleman throughout the trial. I have no complaints about your conduct, except you disobeyed the order of the Court to produce the statement when the Court felt that you should do it. I think we should have an expression on that by the Supreme Court.”

The report of the proceedings, certified by the trial judge, discloses what actually occurred in open court upon the trial of the personal injury case in connection with the subject matter of the contempt order. This being a direct attack and not a collateral one upon the order, and there being a report of proceedings, the findings in the order, if in conflict with the report of proceedings, do not control. It is only where there is no report of proceedings that this court will not go behind the order but is bound to assume that the findings in the order are correct. Sharp v. Sharp, 333 Ill. 267, 274; In Re Cash, 383 Ill. 409, 429; Sundene v. Koppenhoefer, 343 Ill. App. 164, 169.

It is clear to us that the photostatic copy of the witness’s statement, which the court ordered plaintiff in error to procure from his office and produce in court, could not be used by him in the examination of the witness to refresh his recollection, unless it appeared that the witness had exhausted his recollection upon the given subject matter. Only then would counsel be permitted to show the witness the statement and ask him, after reading it, whether it refreshes his recollection.

The cross-examination of this witness developed the fact that he saw the photostatic copy of his statement in plaintiff in error’s office before he was called to the stand as a witness. He had not read it, but in discussing the statement he thought it refreshed his recollection with respect to the incident of the “motorcycle going through under the gate.” However, on further cross-examination, he definitely stated, “The minnte they notified me I was to be a witness np here abont what the accident was, then I remembered about the motorcycle going through under the gate. That was all.” It was apparent from the witness’s statement that there was no need for refreshing his recollection as to the circumstance of the motorcycle going under the gate.

Plaintiff in error not having exhibited or used the statement on the trial to refresh the witness’s recollection, counsel was not entitled to demand of plaintiff in error the production of the statement. Having no right to demand it, the court had no right to direct plaintiff in error to go to his office, obtain the photostatic copy and produce it in open court. The trial judge’s pronouncement that “whether the order is good or bad, it must be obeyed,” is not an accurate statement of the rule of law.

No Illinois case is cited to us which sustains the power of the trial judge, while a case is on trial, to direct counsel to go to his office, obtain a copy of a statement and produce it upon the hearing, when it clearly appears there is no legal right to use it. The photostatie copy of the statement in question was procured in preparation for the trial. Such a document need not be produced when discovery is sought in advance of trial, because it is exempted by Eule 19 — 5, formerly Rule 17, of the Supreme Court [Ill. Rev. Stats. 1955, ch. 110, § 101.19 — 5; Jones Ill. Stats. Ann. 105.19 — 5], which provides:

“All matters which are privileged against disclosure upon the trial are privileged against disclosure through any discovery procedure. Disclosure of memoranda, reports or documents made by or for a party in preparation for trial or any privileged communications between any party or his agent and the attorney for the party shall not he required through any discovery procedure.”

Had the document in question been subpoenaed or sought under discovery proceedings, the above rule would bar an order for its production.

Directly in point is Hayes v. Chicago Transit Authority, 340 Ill. App. 375. There, the defendant obtained a statement from plaintiff as to the accident, in preparation for trial. Upon the motion of plaintiff and a hearing had, the court entered a formal order for the production of the statement. Upon refusal to comply with the order, defendant was fined $500 for contempt of court. In reversing the order, we there said the statement was obtained in preparation for future trial or proceedings involving the accident, and came within Rule 17 of the Supreme Court, exempting such a document from the right to discovery, production or inspection, and refusal to comply with the order did not constitute contempt.

To the same effect is Chapman v. Gulf, M. & O. R. Co., 337 Ill. App. 611, 622, where it was further held that where the purpose for the production of the document made in preparation for trial was to refresh a witness’s recollection, did not justify any order for its production under the then Rule 17 of the Supreme Court.

It occurs to us that in principle it would be unjust and anomalous to hold defendant in the instant case was bound to obey the verbal order and be guilty of contempt for refusal to obey, when in the Hayes case there was a formal order entered of record for production of the document after a full hearing, and such a refusal to comply was held not to constitute contempt. We think the order in the instant case also violates the established rule of law as to privileged communication between attorney and client, represented by the document in question, where such privilege is not waived. People v. Gerold, 265 Ill. 448, 481; Thorp v. Goewey, 85 Ill. 611; People v. Barker, 56 Ill. 299; Oliver v. McDowell, 100 Ill. App. 45.

Obviously, the verbal order of the court directed to plaintiff in error, to procure the document in question and produce it in court, was for the benefit of plaintiff in the main case. Had a formal order been entered to produce the document upon a discovery hearing or in response to a subpoena, such an order would be for the benefit of said plaintiff, and a refusal to comply, if it constituted contempt, would be civil contempt. People v. Gholson, 412 Ill. 294, 298. It was there said:

“A civil contempt ordinarily consists in failing to do something ordered to be done by a court in a civil action for the benefit of an opposing party therein.”

It is not a criminal contempt directed against the dignity or authority of the court. People v. Gholson, supra. The statement made by the court, already referred to, in addressing defendant, “You were a gentleman throughout the trial. I have no complaints about your conduct,” establishes that there was nothing in the attitude or conduct of counsel calculated to embarrass, hinder or obstruct a court in the administration of justice.

In People v. Loughran, 2 Ill.2d 258, 263, dealing with the subject of contempt, the court said:

“The power to adjudge guilt and impose punishment without proof or examination, and without plea, trial or issue exists in no other situation or proceeding. It is an exception to our constitutional guarantees which we would regard as intolerable in any other proceeding or for any other purpose. It is readily susceptible of abuse and fraught with danger not only to personal liberties but to the respect and confidence which our courts must maintain. Although such a power is universally recognized as essential to an orderly and effective administration and execution of justice, it should be exercised with utmost caution . . . .”

For the reasons indicated, the order appealed from is reversed.

Reversed.

KILBY, J., concurs.

TiBWB, P. J., took no part.


text:
    Ben Schwartz et al., Appellants, v. Congregation Powolei Zeduck et al., Appellees.
    Gen. No. 46,709.
    First District, Third Division.
    February 1, 1956.
    Released for publication February 24, 1956.

      Ben Copple, and Meyer Silverstein, both of Chicago, for appellants.
    No brief filed by appellee.
   JUDGE KILEY

delivered the opinion of the court.

This is a suit to enjoin defendants from violating the zoning ordinance by using property at 4857 N. Hamlin Avenue, Chicago, Ilinois as a school and synagogue. Defendants’ motion to strike the complaint was sustained and plaintiffs appealed from the order dismissing the suit. Defendants have not filed a brief in this court.

The property in question is located on the southeast corner of Ainslie Street and Hamlin Avenue in a district zoned for duplex residences. The rest of the property on the east side of Hamlin Avenue is occupied by single or duplex residences. However, immediately across the alley to the east of 4857 Hamlin Avenue is an apartment building.

The Municipal Code of Chicago, Chapter 194A, Section 6, provides that uses permitted in a family residence district will be permitted in a duplex residence district. In stating what uses are permitted in a family residence district, Section 5 provides: “(2) On a lot . . . (b) adjoining an Apartment House . . . the following uses are also permitted: Church; . . . Grade, high school or Sabbath school. . . .” Section 3 of the same Chapter further provides that “District boundaries are street lines, alleys, railroad rights of way or. . . .”

The question is whether the property on which the school and synagogue are being operated is “adjoining” an apartment building and therefore is a permissive use under Section 5 of the Municipal Code of Chicago.

The word “adjoining” is the key word and its meaning is vital to this decision. Our Supreme Court in Bowes v. City of Chicago, 3 Ill.2d 175, at page 200 referring to the word “adjacent” quoted from People ex rel. Sackmann v. Keechler, 194 Ill. 235: “It has no arbitrary meaning or definition. Its meaning must be determined by the object sought to be accomplished by the statute in which it is used.” The court pointed out various meanings attributed to the word “adjacent” by Webster; “lying near, close, or contiguous; neighboring; . . .’ Synonyms for ‘adjacent’ . . . áre ‘nigh, juxtaposed, meeting, and touching.’ ” In the Sackmann case the court equated “adjacent” and “adjoining.”

In our present construction of the term “adjoining” we shall be governed by the evident intent of the City Council. When the City Council passed the ordinance here in question it did not, in our judgment, intend a narrow meaning by its use of the term “adjoining.” It did not intend that the lot need actually touch the apartment house use. That it was “near,” “next to” or “close to” the apartment house is sufficient.

But plaintiffs argue that the alley between the two lots, according to Section 3, is a “district boundary” and prevents this construction of the term “adjoining.” We would not hesitate, however, to say that one zoning district adjoins another even though separated by an alley. The development of one zoning district may be in part regulated by tbe character of the adjacent district. In fact, it is not unreasonable to base zoning regulations for one municipality upon the conditions or character of an adjoining municipality, La Salle Nat. Bank v. City of Chicago, 4 Ill.2d 253, 257 and cases cited therein. The New Jersey Supreme Court has said: “To do less [to fail to consider developments in a neighboring municipality] would be to make a fetish out of invisible municipality boundary lines and a mockery of the principles of zoning.” Borough of Cresskill v. Borough of Dumont, 15 N. J. 238, 104 A.2d 441, 446. A subdivision has been held to be “adjoining” a city even though a ten-foot strip of land passed between, Lefler v. City of Dallas (Tex. Civ. App.), 177 S.W.2d 231; and houses were said to be “adjoining” for purposes of a mechanic’s lien statute even when a right of way intervened. Fitzpatrick v. Allen, 80 Pa. 292, 295.

We believe that the City Council did consider the neighboring districts in forming Section 5 and that it did intend the terms “adjoining an apartment house” to apply, even though a district boundary passed between the two lots. We further believe that if the Council did not intend this application that it would have clearly so stated.

Therefore, since the presence of the alley between the two lots does not prevent them from being “adjoining,” the defendants are entitled to the permissive use granted by Section 5 of the Municipal Code of Chicago. Defendants are lawfully using the property at 4857 Hamlin Avenue and therefore plaintiffs have failed to state a cause of action. The trial court was correct in so ruling.

Judgment affirmed.

FEINBERG, J., concurs.

LEWE, P. J., took no part.