author: MR. JUSTICE MURPHY BURMAN, P. J.,

text:
    In the Matter of the Estate of Anna G. King, Deceased. Ruth King Ruffing, Ray N. King, and Ona King Marr, for and on Behalf of Themselves and Other Heirs, Legatees, and Devisees of Anna G. King, Deceased, Similarly Situated, Petitioners-Appellants, v. Dale Glissendorf, et al., and Continental Illinois National Bank and Trust Company of Chicago, Respondents-Appellees.
    Gen. No. 52,075.
    First District, First Division.
    January 29, 1968.

      BURMAN, P. J., dissenting.
    Blanksten and Lansing, of Chicago (Bernard M. Kaplan, of counsel), for appellants.
    Jurco, Damisch & Sinson, John B. Lampe, of Chicago (James R. Mitchell and John W. Damisch, of counsel), for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a proceeding under section 72 of the Civil Practice Act to set aside the admission of a will to probate and to contest its validity. The petition was filed in the estate of the decedent more than nine months after the admission of the will to probate. The petitioners appeal from an order which struck and dismissed their petition.

On March 5, 1962, Anna G. King, in a conservatorship proceeding in the Probate Court of Cook County, was adjudicated “an incompetent” and “incapable of managing her person and estate.” Donald E. Nichols was appointed conservator of her estate and person. She died on December 5, 1965, in a nursing home. She had been married only once, and then to Roy D. King, who had predeceased her. No children were born to her, and her heirs at law were three nieces and a nephew. She was then eighty-nine years of age. As she had never been restored, the conservatorship proceedings were still in effect at her death.

On December 10, 1965, in the Probate Division of the Circuit Court of Cook County, an order was entered admitting to probate a purported will of Anna G. King, dated June 28,1965. Letters testamentary were issued to the Continental Illinois National Bank and Trust Company, and it entered upon its duties as executor. The will devised and bequeathed her entire estate to her nieces and nephew, all respondents here.

Thereafter, on December 21, 1966, petitioners filed their “petition for relief pursuant to the provisions of Section 72 of the Civil Practice Act of Illinois, and Sections 5, 69, 90,112 and 126 of the Probate Act of Illinois,” in the estate proceedings which were still pending. Petitioners sought to vacate and set aside the order entered on December 10, 1965, admitting to probate the purported will of Anna G. King, deceased, dated June 28, 1965, and to have that will “decreed to be a nullity and of no legal effect”; and to have a prior will dated July 25, 1961, admitted to probate as the last will and testament of Anna G. King, deceased.

The petitioners are relatives of Anna G. King’s deceased husband and are legatees under the will dated July 25, 1961. This will was never submitted for admission to probate and was filed with the Clerk of the Circuit Court of Cook County, Probate Division, on December 27, 1965. Petitioners allege that they had no notice of the death of the decedent or of the admission to probate of the will dated June 28, 1965, or of the existence of the prior will dated July 25, 1961, until after the expiration of more than nine months after the admission to probate of the will dated June 28,1965.

In sum, the grounds alleged for relief are based on (1) fraud in the admission of the will to probate, and (2) fraud and undue influence in the execution of the will.

As to the first of these contentions, petitioners allege that respondents and their counsel fraudulently and improperly concealed and failed to disclose decedent’s incompetency to the court at the time they sought the admission of the will to probate. Petitioners assert, under section 69 of the Probate Act, that if the trial court had been properly informed of decedent’s incompetency at the time her will was submitted for admission to probate, it would have barred the admission to probate of the will of June 28,1965.

As to the second of their contentions, petitioners allege that respondent’s counsel were subscribing witnesses to the will of June 28, 1965, and respondents and their counsel procured the execution of the will by fraud and undue influence. Petitioners assert that the fraud and concealment of decedent’s incompetency at the will hearing operated to suspend or toll the 9-month limitation period for the contesting of her will under section 90 of the Probate Act, and their petition was timely filed to contest the will.

The record includes the testimony taken at the hearing on the admission of the will to probate on December 10, 1965. The original transcript sets forth the testimony of John W. Damisch and Stephen Jurco, two of the four subscribing witnesses. Both witnesses were attorneys and members of the law firm representing the executor. Both witnesses testified as to the execution of the will on June 28, 1965, and their belief that Anna G. King “was of sound mind” when she signed the will. They stated she talked “intelligently and rationally” and “rationally and coherently,” and that they believed “she knew what she was doing.”

John W. Damisch also testified that when the decedent signed the will, the persons present included Harold W. Collins, Junie L. Sinson and Stephen Jurco. Stephen Jurco stated that Anna G. King “had a very keen sense of humor,” and on being questioned by Harold Collins, appearing on behalf of the executor, Jurco replied affirmatively to the questions: “Did you discuss with the decedent the nature and extent of her property?” “Was she aware of the nature and extent of her property?” “Did she know the specific purpose of her business there?” “She knew she was making a will?”

At the hearing of the section 72 petition, Collins stated to the court that the transcript of the testimony of the will hearing was not complete, and after some colloquy between court and counsel, he stated, “Reading from this court record, Mr. Collins — that being myself — directing his remark to the attention of the Court, states that, ‘The decedent was a ward of this court, a conservator having been appointed in 1962 ....’” Except for the foregoing, no reference was made of the conservatorship in the petition or in the proceedings for the admission of the will to probate.

The record further shows that at the hearing of the section 72 petition, the trial court reviewed the record at length and pertinent authorities and remarked, “It has been shown that counsel here introduced evidence to show that this person had been declared incompetent. That’s been admitted. There were two people who were subscribing witnesses to a will who testified that in their opinion — as read here by counsel previously and which the Court will take judicial notice of for its own record— this person was of sound mind, memory, and so forth.” In sustaining the motion to strike the petition for relief, the court found “that the statutory requirements for the admission of the will to probate under Section 69 of the Probate Act have been complied with.”

Petitioners contend the basic issues presented for review are:

“(1) Whether the nine (9) months’ period of limitations under Section 90 of the Probate Act of Illinois for filing a petition to contest the admission of a Will to probate, operates, not as a jurisdictional limitation upon the part of the Circuit Court to entertain such a petition, but only as a Statute of Limitations subject to such exceptions as would, as here by reason of fraud, bar the tolling or running of a Statute of Limitations ?
“ (2) Whether under the facts and circumstances here presented there was such ‘fraud . . . compulsion or other improper conduct’ in connection with the execution by the decedent of her Will dated June 28, 1965, as well as lack of notice to the petitioners-appellants, and/or such unrebutted continued presumption of insanity upon the part of the testatrix in connection with her execution of her said Will dated June 28, 1965, as would bar the admission to probate of said Will of Anna G. King, deceased, dated June 28, 1965, under Section 69 of the Probate Act of Illinois ?
“(3) Whether, under the facts and circumstances here presented, the Petitioners-Appellants as contestants to the admission to probate of said Will of Anna G. King, deceased, dated June 28, 1965, can properly submit evidence in support of their Petition for Relief under Section 72 of the Civil Practice Act of Illinois to vacate, set aside and hold for nought the Order of the trial court of December 10, 1965 admitting said Will to probate, where the subscribing witnesses and proponents of said Will are themselves parties to the ‘fraud, . . . compulsion or other improper conduct’ in connection with the execution of said Will, and the admission of said Will to probate ?”

The respondents contend that the execution of the will and its probate complied with all the statutory requirements. They assert there was no duty on the part of respondents to inform the court as to the alleged “senile dementia,” because if such a condition existed, it would only be evidence from which lack of testamentary capacity could be inferred — since the only evidence admissible at the hearing was that of the attesting witnesses, it was not incumbent upon the respondents or their counsel to go into the matter. They also assert that evidence as to the conservatorship of the testatrix was not admissible on the hearing to admit the will to probate, and there can be no duty to inform the court concerning matters as to which no evidence could be received.

At the outset, we note that section 72 of the Civil Practice Act states that relief “shall be available in every case by proceedings hereunder, regardless of the nature of the order, judgment or decree from which relief is sought or of the proceedings in which it was entered . . . statutory or otherwise,” and “in the same proceeding in which the order, judgment or decree was entered but is not a continuation thereof.” From this, it is our opinion that section 72 may be appropriately used in probate proceedings and for the relief sought here.

We are of the opinion, also, that petitioners, as devisees and legatees of a prior will of the decedent, were “interested persons” within the meaning of section 90 of the Probate Act for the purpose of contesting the validity of the will of June 28,1965.

The disposition of property by will is not an inherent or natural right but is purely statutory and is presently regulated by the Probate Act of 1939, as amended (36 ILP, Wills, § 2). The Probate Act sets forth (1) the required capacity of a testator (§ 42); (2) the requirements and manner of executing a will (§ 43); (3) the procedure for the admission of a will to probate and the testimony of witnesses (§§ 63-69); and (4) the procedure for the contest of a will within nine months after the admission to probate by “any interested person,” by filing “a petition in the proceeding for the administration of the testator’s estate to contest the validity of the will” (§90).

We do not agree with petitioners that the 9-month period provided under section 90 for the filing of a petition to contest the validity of a will is a general statute of limitations. It has been well settled in this state that the power of a court to entertain a petition to set aside a will is purely statutory and “can be exercised only in the manner and within the limitations prescribed by statute.” (McQueen v. Connor, 385 Ill 455, 457, 53 NE2d 435 (1944).) “The time within which such a proceeding may be brought is considered to be a condition essential to the jurisdiction of the court,” and the court has no jurisdiction or power to entertain such a proceeding after the statutory period has passed. (Heuberger v. Schwartz, 41 Ill App2d 28, 31, 190 NE2d 163 (1963).) “Statutes providing for contests within a prescribed period have been held not to be statutes of limitation, but grants of jurisdiction.” (95 CJS, Wills, § 359, p 214.) See, also, Pedersen v. Dempsey, 341 Ill App 141, 142, 93 NE2d 85 (1950); Masin v. Bassford, 381 Ill 569, 572, 46 NE2d 366 (1943).

We conclude that as the instant petition was not filed within nine months after the admission to probate of decedent’s will, the Probate Division, under the provisions of section 90, had no jurisdiction to consider the petition to contest the validity of the will.

Considered next is petitioners’ contention that the Probate Court had jurisdiction to consider their petition under section 69, because the alleged facts showed “fraud, forgery, compulsion or other improper conduct” by respondents and their counsel, sufficient to invalidate or destroy the will.

Although respondents assert that at the will hearing the court was informed as to the pendency of the conservatorship of the testator, we shall consider that issue as if the court had not been informed and in the light of the Probate Act and pertinent authorities of this state.

In In re Estate of Weedman, 254 Ill 504, 98 NE 956 (1912), the question arose as to whether evidence of the mental capacity of the testatrix was competent at the will hearing, and the court said (p 506):

“The will was executed in legal form and the testimony of the subscribing witnesses fulfilled the requirements of the statute for its admission to probate. No other evidence as to the mental capacity of the testatrix was competent. . . .
“The object of a hearing when a supposed will is presented for probate is to determine whether it has been executed with the formalities required by law, and the statute prescribes the amount and kind of proof which is sufficient to admit the will to record, —that is, the testimony of two subscribing witnesses to the execution of the will and to their belief that the testator or testatrix was of sound mind. No other evidence is required and no contradictory evidence is admissible, though the statute reserves the right to show fraud, compulsion or other improper conduct sufficient to invalidate the will. Therefore no part of the proceedings for the appointment of a conservator or of the testimony of Mrs. Weedman was admissible for the purpose of showing that she was not of sound mind.”

At page 507:

“Though unsoundness of mind once shown to exist may be presumed to continue, the presumption is not conclusive.”

Many of the pronouncements made by our Supreme Court in Shepherd v. Yokum, 323 Ill 328, 154 NE 156 (1926), apply here:

“The probate of wills is governed entirely by the statute, and when the statutory requirements are complied with, no others can be prescribed.” (P 332.)
“In the absence of proof of fraud, forgery, compulsion or other improper conduct both the probate court and the circuit court are required to admit a will to probate upon proof that the requirements of the statute have been complied with.” (P 333.)
“The court is not required to find from the testimony of the witnesses that the testator was, in fact, of sound mind and memory when he executed the will. . . . If the subscribing witnesses testify that they believed the testator was of sound mind and memory when he executed the will the probate court must accept their view, even though it may be of the opinion that their belief was not well founded or was erroneous. The probate court has no power to weigh the evidence further than to determine if a prima facie case has been made out. It was not intended by the legislature that all things which will invalidate a will should be cognizable by the court to which an application for probate is addressed.
“. . . It is not the duty of a proponent to show that the will is valid in all respects. It is only his duty to make proof of the essentials mentioned in the statute. When he has done this a prima facie case entitling the will to probate has been made out. Neither the probate court, nor the circuit court on appeal, has power to refuse a will to probate upon any ground whatsoever other than a failure of the proponent to make proper proof of the requirements mentioned in section 2, or because proof of fraud, forgery, compulsion or other improper conduct appears which is deemed sufficient to invalidate or destroy the will. ... In Stuke v. Glaser, 223 Ill 316, the term ‘fraud,’ used in the proviso, was held to relate to such conduct as a trick or device by which a person may be induced to sign the paper under the impression it is something else, or to the alteration of the will after it is signed, or the substitution of another paper for part of the will after it has been signed, and matters of like character. This definition of ‘fraud’ was later approved in Buerger v. Buerger, supra. The terms ‘compulsion’ and ‘other improper conduct’ were also defined in the last mentioned case. Compulsion was said to refer to actual constraint or pressure, physical or otherwise, amounting to duress, or threats to compel the execution of the instrument. ‘Other improper conduct,’ following the specific words ‘fraud’ and ‘compulsion,’ was said to refer to other acts of a kind similar to those specifically mentioned. It is therefore apparent that undue influence is not included within the purview of section 2 of the Wills act by specific mention or by necessary implication.” (Pp 334-335.)
“When a prima facie case has been made out warranting the admission of a will to probate, and no proof has been made of fraud, forgery, compulsion or other improper conduct sufficient to invalidate or destroy it, an objector has done all the law permits him to do in that proceeding. ... If he has any countervailing testimony upon the testator’s sanity, or as to his capacity to make a will, or whether he made it under unlawful constraint, he must resort to his bill in chancery.” (P 336.)

See, also, In re Estate of Guinane, 65 Ill App2d 193, 213 NE2d 30 (1965).

In our opinion, the foregoing authorities provide the guidelines to be used in the instant appeal. The new Judicial Article (Article VI, effective January 1, 1964), which in effect eliminated the Probate Court and probate appeals to and trials de novo in the Circuit Court, does not call for the use of new guidelines. We conclude that neither the provisions of the Probate Act nor the pronouncements of our Supreme Court required the proponents of the instant will, at the proceedings for the admission of the will to probate, to inform the court of the still pending conservatorship of the testator.

Therefore, we hold that the alleged failure by the proponents of the will to inform the court (denied by them), of the pending conservatorship of the testator, was not a basis, under section 69, on which to charge the proponents with fraud on the court or improper conduct in the admission of the will to probate or as a ground to vacate and set aside the order of December 10, 1965, admitting the will of June 28,1965, to probate.

As the instant will was properly admitted to probate under section 69, it follows that the section 72 petition filed December 21, 1966, was not filed within the statutory period provided by section 90 for a will contest, and the Circuit Court was without jurisdiction to entertain it.

For the reasons given, it was proper for the trial court to strike and dismiss the instant petition to set aside the admission of the will and to contest its validity, and the order is affirmed.

Affirmed.

ADESKO, J., concurs.

BURMAN, P. J.,

dissenting:

I am unable to agree with the judgment of the majority of the court. I am of the opinion that the petitioner’s request for relief under section 72 should be allowed and the cause should be reversed and remanded for trial on the merits of the petition.

Section 72 has been increasingly used as a procedural device to prevent injustice. Ellman v. De Ruiter, 412 Ill 285, 106 NE2d 350 (1953). A liberal construction of section 72 has been established whereby a petition filed under section 72 invokes the equitable powers of the court to grant relief where it is necessary to prevent injustice. Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348 (1963).

Section 69 of the Probate Act (Ill Rev Stats 1965, c 3, § 69) as amended, provides in part, that the execution of a will is sufficiently proved to admit it to probate when two attesting witnesses testify that they believe the testator to be of sound mind and memory at the time of the signing and acknowledging of the will “. . . unless there is proof of fraud, forgery, compulsion, or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will.” (Emphasis supplied.)

The record shows that Anna G. King, the testatrix in the instant case, was declared an incompetent on March 5,1962, and was never restored. The order declaring Mrs. King an incompetent was the result of a petition filed by the respondents-appellees. The petition alleged that Anna King was eighty-six years of age and was wholly incapable of managing her estate. The petition requested the appointment of a conservator because Anna King, due to her advanced age, physical incapacity, and mental deterioration, “. . . is wholly incapable of managing her person or estate.” The petition was supported by the verified affidavits of two physicians who personally examined Anna King. They found that her mental status reflected severe impairment of memory, periods of confusion, and seriously impaired judgment, and that these symptoms were the result of senility and could be expected to increase in intensity.

Pursuant to this petition, a conservator was appointed and by leave of court, Anna King, became a patient at Carmen Manor Nursing Home from March 7, 1962, to June 28, 1965, when she was removed by respondentsappellees through the aid of the firm of Jurco, Damisch and Sinson, and on the latter date, the testatrix executed the involved Will. The testatrix died on December 5, 1965, at the age of eighty-nine. On December 10, 1965, Stephen Jurco and John Damisch, attorneys for the executor, testified as subscribing witnesses to the Will and it was admitted to probate on that day.

In their petition under section 72 the petitioners alleged that they had no notice or knowledge of the pending probate proceedings or of the purported Will of the testatrix until December 2nd or 3rd of 1966. On December 21, 1966, they filed the instant petition. Affidavits were filed by petitioners of statements made by Dr. Louis A. Terman, physician and surgeon and house physician of the Carmen Manor Nursing Home; of Dr. C. Conover Talbot, personal physician of Anna King from 1958 to June 16, 1965; and of Mrs. Clara Cohen, administrator of the Carmen Manor Nursing Home.

Dr. Terman stated that Anna G. King was one of his patients during the entire time she was in the Carmen Manor Nursing Home, and if need be, he examined her on the average of five or more times per week. He said that when she came to the Nursing Home she was clearly senile and suffered from severe impairment of memory and periods of confusion. He further stated that her senility was progressive in nature, and on the date of her removal from the home, she was totally senile. During her stay in Carmen Manor the testatrix was suffering from (1) a total inability to use logic or draw conclusions; (2) total inability to recall; (3) total disorientation as to time, place, and people; (4) episodes of severe senile agitation and emotional outbursts; and (5) living in her childhood a good deal of the time. In Dr. Terman’s opinion she could not comprehend the significance of making a will.

Dr. Talbot, the personal physician of the testatrix, from 1958 to the time when he last saw her in Carmen Manor in June of 1965, stated that in 1962 Mrs. King became easily confused and was getting senile. It was upon his recommendation, concurred in by two other doctors, that a conservator was appointed. He said he saw her every other week at the Nursing Home and more frequently when she was hospitalized. He stated that eventually she became completely senile. In 1965 she could no longer identify him and would ask “who are you young man.” She associated him with a man who brought her candy. At times, Dr. Talbot stated, the testatrix thought her parents, husband, and brothers and sisters were still alive and living with her although they were long since dead. Dr. Talbot was of the opinion that on June 16, 1965, Mrs. King was totally senile, and was incapable of comprehending or taking care of her affairs, money, and property.

Mrs. Clara Cohen stated that she had occasion to see Mrs. King almost every day while the testatrix was staying in Carmen Manor. She stated that Mrs. King suffered from loss of memory and was unable to recall persons or events. She had absolutely no concept of what money, property or estate she might have. Mrs. Cohen stated further that when Anna King was removed from the Nursing Home by the respondents-appellees on June 28, 1965, she had no understanding or comprehension whatsoever of where she was going, or why, or of who was taking her. In the opinion of Mrs. Cohen, Mrs. King, at the time of her departure from Carmen Manor, was totally senile and was incapable of understanding the significance of making a will. Furthermore, the testatrix did not know who her living relatives were.

The section 72 petition alleges that actual and constructive fraud was practiced on the decedent testatrix, and upon the heirs, devisees and legatees who would take under the prior subsisting Will of July 25, 1961, in that the respondents-appellees took advantage of the testatrix’s mental infirmaties to cause her to execute the Will dated June 28, 1965. The petition further alleges that the respondents-appellees fraudulently concealed from the Probate Court the fact that the testatrix was suffering from complete senile dementia at the time of the execution of the instrument dated on June 28th, a fact that they knew about because of their participation in the then still pending conservatorship proceedings. The court dismissed the petition without giving the petitioners a hearing on the merits; the petition was dismissed summarily on the motion of the respondents-appellees.

I do not believe that the petition should have been dismissed in such a peremptory manner. Under the particular circumstances of the instant case I am of the opinion that justice would be better served by vacating the dismissal of the petition and remanding the cause to proceed to trial under the issues raised. Fraud is clearly an appropriate basis for considering relief under sections 69 and 90 of the Probate Act as well as under section 72. Under the Amended Judicial Article the Circuit Court now has “unlimited original jurisdiction of all justiciable matters.” This in effect abolishes the Probate Court as a separate court. This change would seem to militate against the former strict construction of section 69 concerning the scope of issues that could be raised in probate proceedings admitting a will to probate. I also deem it significant that the assets of the estate have not as yet been distributed.

I am of the opinion that the nine (9) months’ period of limitation under section 90 of the Probate Court for filing a petition to contest the admission of a will to probate, operates not as a jurisdictional limitation, but only as a Statute of Limitations subject to such exceptions as would, as here, by reason of fraud, bar the tolling or running of a Statute of Limitations. As pointed out by the petitioners the practical need for such a rule is further highlighted in the instant case by the fact that they were nonresidents of Illinois residing in Minnesota and Colorado, and had no notice or knowledge of the death of decedent, or of the admission to probate of the Will dated June 28, 1965, or of the execution of the prior Will dated July 25,1961, until after the expiration of more than nine (9) months after the admission to probate of the 1965 Will.

In my judgment, an order of Court admitting a Will to probate, is subject to post judgment review under section 72 of the Civil Practice Act and the petitioners should be given leave to contest the validity of the 1965 Will under the facts and circumstances revolving about the admission of the Will.


source: Caselaw Access Project

author: MR. JUSTICE MURPHY

license: Public Domain

text:
    Joan K. Fuhrer, Plaintiff-Appellee, v. Richard J. Fuhrer, Defendant-Appellant.
    Gen. No. 52,362.
    First District, First Division.
    January 29, 1968.
    Rehearing denied March 4, 1968.

      Bloch and Bloch, of Chicago (Frank S. Bloch and Norman L. Bloch, of counsel), for appellant.
    No attorney of record for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a post-divorce decree proceeding, in which the Circuit Court of Cook County entered a decree which “enrolled and established” a divorce decree entered in the Circuit Court of the Nineteenth Judicial Circuit, Lake County, Illinois.

Defendant, Richard J. Führer, appeals from the enrolling decree and from a subsequent order which modified the child support and alimony awards of the decree. Plaintiff, Joan K. Führer, has filed no appearance in this court.

The divorce decree was entered in Lake County on March 15, 1965. Plaintiff, Joan K. Führer, was awarded the custody of their three minor children, and defendant was ordered to “pay the sum of $100.00 per week to the plaintiff as alimony and child support, out of which the plaintiff shall pay all expenses incurred on behalf of herself and the children; provided, however, if the present rent of $215.00 per month is reduced by reason of plaintiff and said children taking up living quarters in other than those presently used, the difference between the present rent of $215.00 and the rent of such other quarters will be subtracted from the amount of said alimony and support money.”

On January 6, 1967, a decree was entered in the Circuit Court of Cook County, which found that the plaintiff and defendant are both residents of Cook County, Illinois, and ordered that the divorce decree “shall be enrolled and established as a decree of the Circuit Court of Cook County.”

On February 20, 1967, an order was entered in the Circuit Court of Cook County, which included a finding “that no monies or sums of money are due and owing to the Plaintiff by the Defendant under the provisions of the Decree of March 15, 1965.” The order directed the defendant to pay to the plaintiff, “as and for alimony and support for herself, the sum of Forty Dollars ($40.00) per week, and as and for support and maintenance of the minor children of the parties hereto, the sum of Sixty Dollars ($60.00) per week.” The order also directed “that the parties shall pay their own respective attorneys’ fees and court costs, the Plaintiff having waived her right to contribution from the Defendant for attorneys’ fees, court costs and expenses incurred in the prosecution of this cause.”

On appeal, defendant contends that (1) the trial court refused him an opportunity to present evidence on his own behalf and did not allow him to cross-examine the plaintiff after her direct examination; (2) the trial courPs modification of the divorce decree was improper and an abuse of discretion; (3) the trial court’s denial of the affirmative relief prayed for in the defendant’s answers was contrary to the manifest weight of the evidence; and (4) the Circuit Court of Cook County had no jurisdiction to modify the alimony and child support awards of a divorce decree entered by the Circuit Court of Lake County.

Considered first is the question of the jurisdiction of the Circuit Court of Cook County to enroll the Lake County decree and to enforce or modify its provisions. There appears to be no direct statutory authority for such an enrollment. The customary practice is outlined in Jackson v. Jackson, 55 Ill App2d 77, 204 NE2d 153 (1965), where the plaintiff sought to register a Winnebago County divorce decree in Cook County under the provisions of the Uniform Enforcement of Foreign Judgments Act. There, the court said (p 82):

“The Uniform Act, if correctly followed and used for the purpose for which it was designed, gives the court jurisdiction of out-of-state judgments only. It cannot be used to secure jurisdiction over judgments, decrees or orders entered by another court within the same state. It follows, therefore, that the decree in the instant case could not be registered under the Uniform Act since it was not the proper subject matter of that Act.”

In the Jackson case, the court further stated (p 83):

“ [Tjhere has always been available in Illinois proper procedure for the enforcement of both local and foreign judgments. Ill Rev Stats 1963, c 110, § 101.-13 (2); Nichols, Illinois Civil Practice, § 4808. The Divorce Act authorizes the enforcement of divorce decrees in any manner consistent with the rules and practice of the court. Ill Rev Stats 1963, c 40, § 19. The accepted practice of enforcing a divorce decree entered in another county within Illinois, is to file a complaint, together with a copy of the decree, praying that the decree be established in the county where the enforcement is sought.”

The record here shows that plaintiff followed the procedure outlined in Jackson v. Jackson by filing in the Circuit Court of Cook County a complaint to enroll and establish the Lake County divorce decree, and a copy of the decree was made a part of the complaint. The defendant was served with a summons in Cook County by the Sheriff of Cook County and subsequently entered his appearance. As both parties now reside in Cook County, the enrollment of the divorce decree in Cook County, with proper notice to the defendant, made available a practical procedure for both parties for the effective enforcement of the provisions of the Lake County divorce decree. In no way does it lessen the protection given defendant to present any defense that may be interposed in post-divorce decree proceedings. Therefore, we hold that the Circuit Court of Cook County properly enrolled and established the instant divorce decree in the Circuit Court of Cook County and properly assumed jurisdiction of the subject matter and the parties thereto.

Considered next is defendant’s contention that he was “denied his constitutional right to due process when, at the hearing, the trial court refused him an opportunity to present evidence on his own behalf and did not allow him to cross-examine the plaintiff after her direct examination.” The hearing on plaintiff’s petition to show cause and to modify the divorce decree by increasing support payments commenced on January 6, 1967. Defendant was called under section 60 and examined at length as to his income and financial status. The hearing was adjourned to January 12, 1967, and defendant continued his testimony as to his financial status. On this occasion, defendant was cross-examined by his own counsel, at the end of which his attorney said, “No further questions.” Plaintiff then testified as to her financial status, living quarters and about the children — Michael, eleven years of age, Douglas, nine years, and Robert, four years. At the conclusion of plaintiff’s direct testimony, the record shows that “the Court and Counsel retired to the Court’s Chambers, and a discussion was had out of the presence and hearing of the Court Reporter.” No further testimony appears of record.

From our examination of this record, we find no indication that the trial court refused to permit defendant to present evidence on his own behalf or refused to permit defendant to cross-examine the plaintiff after her direct testimony. In fact, the record reflects a courteous and continued colloquy between court and counsel in an effort by the court to receive and examine any evidence pertinent to the issues. We find defendant was given a fair trial on the issues before the court.

Considered next is the modification of the alimony and child support provisions of the decree. Plaintiff’s petition to modify the decree asserted defendant’s earnings had substantially increased, and plaintiff sought a “consonant” increase in the alimony and child support. During the taking of the testimony as to defendant’s earnings, and after the trial court indicated there was no basis for increasing the alimony and child support, counsel for plaintiff requested the court to make “some division as to the amount of alimony and the amount of child support.” The court replied, “I think that ought to be done. According to the terms of the decree — .” The requested division was made in the order of February 20, 1967, as previously outlined.

Defendant argues that “under the original Decree and the applicable case law as above, the alimony and child support should be reduced to at least $84.89 per week to reflect just the decrease in Plaintiff’s rent. Such relief was specifically requested by Defendant in his Answers. Yet, contrary to even its own comments quoted above, the Trial Court increased the alimony and child support $65.00 per month by directing payment of a total of $100.00 per week. . . . Defendant’s income tax expense will be increased by approximately $450.00 with a commensurate decrease in Plaintiff’s.”

We are not persuaded that the action of the trial court in making the division of the $100 awarded in the original decree into $40 per week alimony and $60 per week child support was an overall increase of $65 per month. The testimony that the plaintiff moved from the $215 apartment into cheaper quarters was before the court when the trial court arrived at its decision to divide the weekly $100 payment into $40 alimony and $60 child support. Defendant is now required to pay $100 per week, the same as before. If there was an issue as to income tax questions incidental to the division of the $100 into alimony and child support, the record does not reflect any discussion or evidence on that point.

Considering the circumstances portrayed here, the ages of the children and the extended hearing by the court, we find nothing improper in the division of the $100 into alimony and child support, nor do we find justification for this court to direct a reduction of the overall amount of the alimony and child support. If there are any income tax questions which are adverse to defendant, we note that the order of February 20, 1967, includes the following:

“ (f) That the rights of the parties to seek modification or change of any and all provisions in the Decree for Divorce herein shall in no way be changed, altered, diminished, waived or barred by the provisions of this Order, and that either party shall be free to seek such relief from this Court at any time in the manner provided by law.”

For the reasons stated, the enrollment decree and the subsequent order of February 20, 1967, are affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


author: MR. JUSTICE MORAN

text:
    Roger Olsen and Sandra Olsen, Plaintiffs-Appellants, v. Valley National Bank of Aurora, a National Banking Corporation, Defendant-Appellee.
    Gen. No. 67-105.
    Second District.
    January 30, 1968.
    Rehearing denied March 22, 1968.

      Hart, Banbury, Lawrence & Gullstrand, of Aurora, for appellants.
    Dreyer, Foote and Streit, of Aurora, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

The plaintiffs, Roger and Sandra Olsen, brought an action to recover damages, actual and punitive, against the defendant, Valley National Bank of Aurora, for refusing to honor for payment certain checks drawn by the plaintiffs upon their account in defendant’s bank. The checks were marked by the defendant with the legend “Not Sufficient Funds.” The defendant, prior to the presentation of the checks drawn by the plaintiffs, debited the plaintiffs’ account pursuant to an indebtedness due the defendant by the plaintiffs based upon an installment sales contract. A complaint was filed in three counts whereupon the defendant filed a motion to dismiss which was thereafter granted. It is from the order of dismissal that the appeal is prosecuted.

A brief statement of the facts is necessary in order to understand the transaction which gives rise to this cause of action. A joint checking account was opened by the plaintiffs with the defendant on August 22, 1964. Thereafter, on September 3, 1964, the plaintiffs purchased a 21-inch color television set from Aurora Electronics Company, Incorporated, herein called Aurora, and executed and delivered a retail installment contract which provided in part:

“If any installment is not paid in full when due, . . . or if the holder hereof shall for reasonable cause deem itself insecure, the full amount unpaid hereunder shall, at the option of the holder hereof, without notice, become due and payable together with a reasonable sum as attorney’s fees, if placed with an attorney for collection, . . .”

This contract was later assigned by Aurora to the defendant for value and the plaintiffs were duly notified. Except for the first monthly installment, the plaintiffs became consistently delinquent in making their payments, and on June 24, 1966, when two monthly installments of $22.50 each for May and June, 1966, were past due, the defendant exercised the option of accelerating the payments by declaring the three remaining installments also to be due and payable. As a result, plaintiffs became indebted to the defendant for five installments, or a total amount of $112.50. This was set off by debiting the plaintiffs’ account which, at the time, had a balance of $122.02.

On the same day, Sandra Olsen drew a check made payable to the order of “George W. Pearce Company” in the amount of $125. This check was presented to the bank for payment on June 27, 1966; however, because of the aforestated setoff, the account showed a balance of $9.52 and, consequently, the check was marked with the legend “Not Sufficient Funds.”

On June 27, 1966, Sandra Olsen drew another check which was made payable to the City of Aurora in the amount of $15. The next day, the plaintiffs deposited $6 to their account and, on June 30, 1966, the check made payable to the City of Aurora in the amount of $15 was presented to the defendant for payment. The bank returned this check marked with the legend “Not Sufficient Funds.”

It is first contended by the plaintiffs that the defendant did not comply with the provisions of the contract, quoted above, pertaining to the right of acceleration, and therefore, defendant had no right to set off the three remaining installments due upon the contract. It is their interpretation that the full amount unpaid thereunder does not become due and payable, together with a reasonable sum as attorney’s fees, unless it is placed with an attorney for collection. This construction is arrived at by arguing that there is no comma between the words “payable” and “together” which therefore gives rise to the inference that the phrase “if placed with an attorney for collection” does not modify the phrase “reasonable sum as attorney’s fees” but modifies the entire sentence.

In construing written instruments, the rule has been that a qualifying phrase is to be confined to the last antecedent unless there is something in the instrument requiring a different construction. City Trust, Safe Deposit & Surety Co. v. Lee, 204 Ill 69, 71-72, 68 NE 485 (1903); Hardware Mut. Cas. Co. v. Curry, 21 Ill App2d 343, 349, 157 NE2d 793 (1959). Therefore, we hold that the phrase “if placed with an attorney for collection” immediately follows and was clearly intended to modify “together with a reasonable sum as attorney’s fees” and therefore is not a condition precedent in order to institute acceleration. Further, to argue that a holder is required to place a contract for collection with an attorney as a condition precedent to the right of acceleration cannot be deemed the intention of the parties to the contract. In Martindell v. Lake Shore Nat. Bank, 15 Ill2d 272, 154 NE2d 683 (1958) at page 283 the court said:

“The primary object of the construction of a contract is to give effect to the intention of the parties, greater regard being given to such intent, when clearly revealed, than to any particular words used in expression thereof.”

It is next contended that, while a bank has a right to offset a matured unsecured indebtedness due and owed it by a depositor against the depositor’s account, the bank does not have such a right where the debtor’s indebtedness is sufficiently protected by collateral security. It is argued that the contract, held by the bank, was collaterally secured by the 21-inch television set, which remained in the plaintiffs’ possession, and therefore, the defendant was required to proceed against the collateral security, rather than the plaintiffs’ bank account, by way of setoff.

There is no question that a bank has a right to exercise a setoff when the debt is not secured by collateral. The question then posed by this appeal is, does a bank have the right to setoff when the indebtedness is secured by collateral? In Wyman v. Fort Dearborn Nat. Bank, 181 Ill 279, 54 NE 946 (1899), the Helena Bank had funds on deposit in a checking account with the defendant-bank. The Helena Bank was, at the same time, indebted to the defendant pursuant to a certificate of deposit in the sum of $25,000 which debt was secured by collateral in the amount of $30,000 in the form of notes taken by the Helena Bank and endorsed to the defendant. On September 1st of the year in question, the Helena Bank drew a check on the defendant, payable to one Wyman in the amount of $10,000. On September 4th, the defendant, exercising its right of setoff, withdrew the entire balance of the Helena Bank’s checking account (exceeding some $20,000) and applied that amount in payment of the certificate of deposit. The following day, Wyman presented for payment his $10,000 check which was refused. The court held that the defendant had the right to withdraw the funds by reason of the doctrine of setoff, even though the separate and independent debt owed to the defendant was fully secured by collateral. On page 284 the court stated:

“Appropriating the deposit fund in good faith, in pursuance of strict legal rights, for the purpose of protecting its own interests, and without notice of the appropriation of the money by drawing the check in favor of the appellant, was not a wrongful act but one authorized by law, and absolutely transferred the legal and equitable right to the fund so deposited to the Fort Dearborn National Bank, the check not having been presented to it nor it having any notice of the same until the day after the transfer of the account.”

The court then went on to state at pages 287-288:

“The Fort Dearborn National Bank had a right to apply the deposit in payment of the indebtedness pro tanto to the extent of the deposit, and deprive the check-holder of any part of that deposit as a fund assigned to him. . . .”

See also, Home Nat. Bank v. Newton, 8 Ill App 563, 565 (1881).

The plaintiffs argue that other jurisdictions make a distinction between indebtedness secured by collateral and indebtedness not secured by collateral, relative to the right of setoff; however, plaintiffs do concede that the distinction they urge is the minority rule. The ultimate test, of course, should not be numerical superiority, but the rationale supporting the rule. A bank should not be deprived of its right of setoff simply because it has the foresight to obtain collateral in exchange for obligations owed to it. The majority rule, including Illinois, is founded on the rationale that a creditor is able to pursue any one of a number of remedies against a debtor until the debt is satisfied. The minority rule is based upon the rule or statute that there is but one action for the recovery of a debt which is secured by collateral.

In Illinois, a creditor is able to proceed with a number of remedies until the debt is satisfied. The Commercial Code (Ill Rev Stats 1965, c 26, § 9-501(1)) provides that:

“When a debtor is in default under a security agreement, a secured party has the rights and remedies provided in this Part and . . . those provided in the security agreement. He may reduce his claim to judgment, foreclose or otherwise enforce the security interest by any available judicial procedure. . . . The rights and remedies referred to in this subsection are cumulative.”

Further, it should be noted that the check drawn by the plaintiffs on June 24, 1966, and presented for payment on June 27, 1966, would have been returned for insufficient funds regardless of whether or not the defendant had exercised the right of setoff, since the plaintiffs’ balance on that date was not sufficient to cover the $125 check.

The plaintiffs next argue that the contract violates section 3 of the Retail Installment Sales Act. (Ill Rev Stats 1965, c 121%, § 225.) We have examined the entire record and find that this contention was not placed before the trial court and is raised, for the first time, on appeal. The general rule of long standing provides that an issue, other than the court’s jurisdiction of the subject matter, not presented to or considered by the trial court, cannot be raised for the first time on appeal. Woman’s Athletic Club of Chicago v. Hulman, 31 Ill 2d 449, 454, 202 NE2d 528 (1964); McMillen v. Rydbom, 56 Ill App2d 14, 28, 205 NE2d 813 (1965).

For the foregoing reasons, the judgment of the Circuit Court of Kane County is affirmed.

Judgment affirmed.

ABRAHAMSON, P. J. and DAVIS, J., concur.


author: MR. PRESIDING JUSTICE BURKE

text:
    Liberty Mutual Fire Insurance Company, Plaintiff-Appellant, v. Evelyn Loring, Defendant-Appellee.
    Gen. No. 52,386.
    First District, Second Division.
    January 30, 1968.

      Howard, French & Healy, of Chicago, for appellant.
    Levisohn, Loring, Arrigo & Rosinia, of Chicago (Levisohn, Loring, Arrigo & Rosinia, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

Defendant began arbitration proceedings before the American Arbitration Association pursuant to a provision in an automobile liability insurance policy issued by plaintiff to defendant. The proceedings are predicated upon a provision in the policy giving either party the right to demand arbitration of certain questions when a dispute arises with regard to the uninsured motorist provisions of the policy. Plaintiff thereupon brought this action for a declaratory judgment denying coverage under the uninsured motorist provisions on the ground that there was no physical contact between defendant’s vehicle and the “hit-and-run” vehicle. The trial court dismissed the complaint for a declaratory judgment and plaintiff appeals.

Plaintiff maintains that under the terms of its policy of insurance, and under the law of Illinois, physical contact between the vehicle of its insured and that of the uninsured motorist is necessary to the existence of a “hit-and-run” situation, that without physical contact there can be no coverage under the policy, and that the question of coverage, under the terms of the policy, is for a court of law and not for submission to and determination by an arbitration body. Defendant, on the other hand, maintains the subject policy requires arbitration of all controversies between plaintiff and defendant with respect to the uninsured motorist provisions, including the determination of whether there was physical contact between the vehicles and resultant coverage under the policy.

On September 18, 1964, during the period the subject policy of insurance was in force, defendant was involved in an automobile accident on U. S. Highway 45 near Central Road in Cook County. Defendant filed a claim with plaintiff under the policy, alleging that her automobile was struck by a “hit-and-run” vehicle, whose identity was unknown, causing her vehicle to veer into the oncoming lane of traffic and to collide with another vehicle, resulting in injuries to defendant. Defendant thereafter filed a demand for arbitration, as stated above, claiming that she suffered damages as a result of a “hit- and-run” vehicle. Through its complaint for a declaratory judgment, plaintiff denied the existence of a “hit-and-run” vehicle, denied physical contact between any such vehicle and that of defendant, and denied defendant had any cause of action against the alleged “hit-and-run” motorist. The complaint went on to request a declaration by the court that the subject policy affords no coverage to the defendant for the injuries sustained by her as a result of the accident.

The subject policy in pertinent part defines a “hit-and-run” vehicle as:

“. . . a highway vehicle which causes bodily injury to an insured arising out of physical contact of such vehicle with the insured or with an automobile which the insured is occupying at the time of the accident, provided: (a) there cannot be ascertained the identity of either the operator or the owner of such vehicle . . . .”

The policy further provides:

“If any person making claim under the Uninsured Motorists Coverage and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured highway vehicle because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing thereunder, then upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association . . . .”

To be afforded coverage under the “hit-and-run” portion of the uninsured motorist provisions of the subject policy the insured must show, among other matters not here relevant, that the identity of the owner or operator of the other vehicle cannot be ascertained, and that there was physical contact between the insured’s vehicle and the other vehicle. Not only does the subject policy require that the unidentified vehicle make physical contact with that of the insured in order to qualify as a “hit-and-run” vehicle, but the statute relating to “ [u] ninsured or hit-and-run motor vehicle [insurance] coverage” in Illinois imposes the same condition. Ill Rev Stats 1967, chapter 73, par 755a; Prosk v. Allstate Ins. Co., 82 Ill App2d 457, 226 NE2d 498. (For this reason Interinsurance Exchange of Automobile Club of Southern California v. Bailes, 219 Cal App2d 830, 33 Cal Rptr 533, cited by defendant is inapposite on its facts.) Consequently, “[i]f no contact; no hit-and-run automobile. If no uninsured motorist; no right to arbitration and, likewise, no responsibility on the company to compensate its insured for injuries sustained and, therefore, no coverage.” Cruger v. Allstate Ins. Co. (Fla App), 162 So2d 690, 693 (1964). The complaint for declaratory judgment consequently raises an issue as to defendant’s coverage under the appropriate provision of the subject policy, for the reason that plaintiff denied both the physical contact with and the very existence of the alleged “hit-and-run” vehicle.

The question arises whether the issue raised as to coverage should have been tried by the court below, as plaintiff maintains, or whether it was a matter to be settled through the arbitration provisions of the policy, as defendant maintains. It is well settled that parties to a dispute may agree to submit to arbitration any matters relating to that dispute. Gerrish v. Ayres, 3 Scam (4 Ill) 245; Podolsky v. Raskin, 294 Ill 443, 128 NE 534. Conversely, inasmuch as an agreement to submit issues to arbitration is a contract (see e. g. White Eagle Laundry Co. v. Slawek, 296 Ill 240, 129 NE 753) the parties are not required to arbitrate matters not agreed between them to be submitted to arbitration. Although a question of first impression in Illinois, it has been consistently held in other jurisdictions that, under contracts of insurance containing language identical with or similar to the pertinent language contained in the subject policy, the questions of liability of the uninsured motorist to the insured and of damages sustained by the insured as a result of an accident with an uninsured motorist, including “hit-and-run” drivers, are to be submitted to arbitration under the terms of the respective policies of insurance, whereas the question of coverage of the insured under the uninsured motorist provisions of the policies was for the determination by a court of law. Cruger v. Allstate Ins. Co. (Fla App), 162 So2d 690 (1964); Western Casualty & Surety Co. v. Strange, 3 Mich App 733, 143 NW2d 572; Hartford Accident & Indemnity Co. v. Travelers Ins. Co., 25 Conn Supp 414, 206 A2d 847; Rosenbaum v. American Surety Co. of New York, 11 NY 2d 310, 183 NE2d 667.

It is apparent from the pertinent provisions of the subject policy of insurance that the parties agreed to submit to arbitration only those disputes which arose relative to the question of liability of an uninsured motorist to the insured and the question of the amount of damages suffered by the insured at the fault of an uninsured motorist. The subject policy does not contain any agreement or provision that the question of coverage of the insured, when a claim is made of injuries sustained at the fault of an uninsured motorist, be likewise submitted to arbitration. The trial court should have held a hearing on the question of whether there was physical contact between defendant’s vehicle and that of the alleged “hit-and-run” motorist, and whether there was resultant coverage of defendant’s injuries under the policy provisions.

The judgment is reversed and the cause is remanded with directions to determine whether there was physical contact between defendant’s vehicle and the alleged “hit- and-run” vehicle, and if it is found there was no physical contact, judgment is to be entered for plaintiff; if it is found there was physical contact, judgment is to be entered for defendant that the arbitration proceed.

Judgment reversed and cause remanded with directions.

MCNAMARA and LYONS, JJ., concur.


text:
    Trivennia Caruso, Plaintiff-Appellant, v. Nazie Caruso, Defendant-Appellee.
    Gen. No. 51,641. (Abstract of Decision.)
    First District, Second Division.
    January 30, 1968.
    Lou Nathanson and Robert D. Gordon, of Chicago, for appellant; no brief or appearance filed by appellee.
   Opinion by JUSTICE LYONS. Not to be published in full.


author: STOUDEB, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Louis E. Johnson, Jr., Defendant-Appellant.
    Gen. No. 66-60.
    Third District.
    February 2, 1968.

      William E. Stewart, of Kewanee, for appellant.
    James Fulton, State’s Attorney, of Cambridge, for appellee.
   STOUDEB, J.

Defendant, Louis E. Johnson, Jr., pled guilty to the offense of deceptive practices. The Circuit Court of Henry County imposed sentence and denied defendant’s motion for post-trial relief. By our previous order in this appeal we affirmed the conviction but vacated the sentence and remanded the cause for further hearing on the sentence to be imposed. Thereafter we granted rehearing and in view of our decision on the matters considered upon rehearing our previous order is hereby vacated.

The petition for rehearing is not based on the court’s misapprehension of the law or any mistake in our former opinion but relies solely on a new basis for reversal of the trial court’s judgment which basis for reversal was not previously urged in the trial court or in this court. Defendant now argues the information failed to state an offense and is therefore fatally defective. While we do not approve of defendant’s failure to raise this objection at an earlier stage of the proceedings we believe the interests of justice require its consideration.

Defendant was charged in the language of the statute with the violation of section 17-1 (d), chapter 38, Ill Rev Stats (1963), in that he “. . . did then and there with intent to obtain control over certain property, to wit: gasoline . . . issue and deliver a certain bank check . . . knowing that it would not be paid by the depository, . . . .” The charge does not allege that the act was done with “the intent to defraud” and it is the omission of this allegation which defendant contends renders the charge fatally defective. This precise question has previously been considered in People v. Billingsley, 67 Ill App2d 292, 213 NE2d 765 and People v. Samples, 80 Ill App2d 182, 224 NE2d 284, and the court therein concluded that “intent to defraud” is an essential element of the offense and no offense is charged in the absence thereof. People v. Billingsley, supra, is also authority for the proposition that the error can be raised at any time. We find no support for the People’s contention that the rule announced in such cases should be otherwise or that the rule is not applicable to this case. The charge, failing to state an offense, is thereof insufficient to support the conviction.

The judgment of the Circuit Court of Henry County is reversed.

Judgment reversed.

ALLOY, P. J. and CULBERTSON, J., concur.


author: HOFFMAN, J.

text:
    People of the State of Illinois, Appellee, v. Thermon Carter, Alias Thurmon Carter, Alias Paul Poe, Appellant.
    Gen. No. 66-107.
    Third District.
    February 2, 1968.

      Larry M. Leiken, of Peoria, for appellant.
    George R. Kennedy, State’s Attorney, of Peoria, for appellee.
   HOFFMAN, J.

Plaintiff in error and his codefendant, one William Wilson, Jr., in March, 1956, were convicted by a jury of the crime of robbery with a dangerous weapon and for being habitual criminals. Plaintiff in error was sentenced to life imprisonment. This writ of error seeks reversal on several grounds.

The first ground for reversal is based upon the admission into evidence of certain articles identified as having been taken from the victims, which were obtained by the authorities from Wilson’s car. The search of Wilson’s car was made at the time of his arrest, and with his consent. Plaintiff in error wasn’t present. Plaintiff in error never claimed any proprietary or possessory interest in the Wilson automobile or the articles seized. At no time after the seizure of these articles, including the trial, did plaintiff in error make any motion to suppress this evidence.

Although it has been held in Jones v. United States, 362 US 257, followed by our Supreme Court in People v. DeFilippis, 34 Ill2d 129, 214 NE2d 897, that an accused does not lack standing to object to the constitutionality of a search and seizure merely because he fails to allege the requisite proprietary or possessory interest in the articles seized, it was not held in either case, nor do we find any authority anywhere to suggest, that a defendant has standing to object if he has no possessory interest in the premises or property searched.

On the contrary, it has been consistently held in the federal courts as well as our courts, that unless the illegal search and seizure infringed upon an accused’s own personal rights he was held to have no standing to prevent the admission of the evidence. Goldstein v. United States, 316 US 114; People v. DeFilippis, supra. And in the Jones case, supra, at page 261, the United States Supreme Court stated:

“In order to qualify as a ‘person aggrieved by an unlawful search and seizure’ one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else. . . .
“(I)t is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege . . . that he himself was the victim of an invasion of privacy . . .”

We, therefore, hold that the ruling of the trial court was proper, in view of the fact that plaintiff in error showed no infringement of his right to be free of unconstitutional searches and seizures.

Plaintiff in error next complains that his rights were erroneously prejudiced by the giving of certain jury instructions.

He first complains of People’s Inst #7. Plaintiff in error argues that this instruction places a criminal defendant who testifies in a position inferior to other witnesses and cites People v. Munday, 280 Ill 32, 117 NE 286, in support of his contention. The Supreme Court in the Munday case held that a similar instruction should not have been given. However, in the instant case, as distinguished from the Munday case, the court gave an additional instruction on behalf of the plaintiff in error (Defendant’s #9) which in our opinion cured any error created by the giving of People’s #7, for it carefully and clearly told the jury that the same test of credibility and weight applied to the defendant’s testimony as it did to all other witnesses. See People v. Bruce, 344 Ill App 114, 100 NE2d 350.

Plaintiff in error next complains of the giving of People’s Inst #30 which told the jury that the exclusive unexplained possession of stolen property soon after a theft may be considered as tending to prove the guilt of the person in whose possession it was found. It is claimed by plaintiff in error that he was prejudiced because he was tried as an accomplice of Wilson (the defendant in whose auto the property was found), that Wilson, in fact, explained his possession of said property, and that, therefore, the giving of such instruction prejudiced plaintiff in error. Although there is authority holding that the giving of such instruction is error, we find here, from a review of the whole record, that Wilson’s explanations were so contradictory, so inherently unbelievable and so equivocal as to take the giving of this instruction from the rule. We hold that it wasn’t error, under such facts, to have given the instruction in this case.

The plaintiff in error next contends that he wasn’t identified by the victims beyond a reasonable doubt. He argues that conditions at the time of the alleged theft were not conducive to a clear identification; that the lineup was ineffective; and that the victims’ testimony was, at best, vague and uncertain. In this situation the rule to be applied is set forth in People v. Brengettsy, 25 Ill2d 228, 184 NE2d 849, at page 231, where it was stated that “The sufficiency of the identification was a question of fact for the jury, and this court will not reverse unless the testimony is so unsatisfactory as to leave a reasonable doubt as to the guilt of the accused. . . .”

We have carefully examined the abstract references to the identification testimony referred to by plaintiff in error and have reviewed all of this testimony. From it we find that the victims positively and without any indicated doubt identified the plaintiff in error as one of the men who was in their home. This testimony was substantiated by Frank Jackson, one of the accomplices. It cannot be said that there was any reasonable doubt as to the identification of the plaintiff in error.

Finally, plaintiff in error contends that he was prejudiced by being asked by the State’s Attorney upon his cross-examination of the plaintiff in error whether or not he was connected with a Chicago political organization. An objection to this question was sustained. Whether or not such an extraneous question is so improper as to require reversal primarily rests with the trial judge who is in a position to weigh the probable impact upon the jurors. People v. Campbell, 234 Ill 391, 84 NE 1035. And, the test of prejudice is whether or not the statement is calculated to produce a result which otherwise would not have been reached. Gallagher v. People, 211 Ill 158, 71 NE 842. Plaintiff in error makes no showing that the result “otherwise would not have been reached,” and it seems unrealistic to us, upon the review of all the evidence, that such would have happened. The cases cited by plaintiff in error, People v. Lewis, 313 Ill 312, 145 NE 149, and People v. Sanders, 357 Ill 610, 192 NE 697, contained extraneous questions far beyond that in the present case and are not applicable on their facts.

In our opinion, from a review of the whole record, the defendant was properly convicted beyond a reasonable doubt and without prejudicial error. Accordingly, the judgment of conviction will be affirmed.

Affirmed.

ALLOY, P. J. and STOUDER, J., concur.


author: STOUDER, P. J.

text:
    Dwayne Bishop, Plaintiff-Appellant, v. Mark Ellsworth, Jeff Ellsworth, David Gibson, and Canton State Bank, an Illinois Banking Corporation, Defendants-Appellees.
    Gen. No. 67-2.
    Third District.
    February 2, 1968.

      Frederick W. Allen, of Peoria, for appellant.
    Scott & Sebo, and James Van Sickle, of Canton, for appellees.
   STOUDER, P. J.

Dwayne Bishop, plaintiff, filed a complaint alleging that on July 21,1965, defendants, Mark and Jeff Ellsworth and David Gibson, three small boys, entered his salvage yard premises at 427 Mulberry Street in Canton, without his permission, and while there happened upon a bottle partially embedded in the loose earth on top of a landfill, wherein they discovered the sum of $12,590 in United States currency. It is further alleged that said boys delivered the money to the municipal chief of police who deposited it with defendant, Canton State Bank. The complaint also alleges defendants caused preliminary notices to be given as required by Ill Rev Stats, chapter 50, subsections 27 and 28, (1965), but that such statute or compliance therewith does not affect the rights of the plaintiff. The complaint then prays that the court appoint a guardian ad litem for the minor defendants, and adjudicate “the rights of the parties hereto with respect to (the) currency hereinabove mentioned.” To this complaint, an attorney on behalf of the next friends and natural guardians of the minor defendants, filed a motion to dismiss on the grounds that no cause of action is stated. The trial court, after hearing arguments, sustained this motion, and after ascertaining, at the same time, that plaintiff admitted to no claim except as theretofore set forth in the complaint, denied him leave to amend. Plaintiff has perfected this appeal from the order dismissing his complaint and denying his request for leave to amend.

It is plaintiff’s contention that an owner or person in possession of land has a right of possession also to all property in, on and under it, against all but the rightful owner, and that the complaint herein, alleging that defendants, as trespassers, took the money from plaintiff’s private grounds, is sufficient in law to state a claim to the possession of the discovered property. It is defendant’s contention that the provisions of Ill Rev Stats, chapter 50, subsections 27 and 28 govern this case. The relevant portions of this statute are as follows: “27. Lost goods ... If any person or persons shall hereafter find any lost goods, money, bank notes, or other choses in action, of any description whatever, such person or persons shall inform the owner thereof, if known, and shall make restitution of the same, without any compensation whatever, except the same shall be voluntarily given on the part of the owner. If the owner be unknown, and if such property found is of the value of $15 or upwards, the finder . . . shall, within five days after such finding . . . appear before some judge or magistrate . . . and make affidavit of the description thereof, the time and place when and where the same was found, that no alteration has been made in the appearance thereof since the finding of the same, that the owner thereof is unknown to him and that he has not secreted, withheld or disposed of any part thereof. The judge or magistrate shall enter the value of the property found as near as he can ascertain in his estray book together with the affidavit of the finder, and shall also, within ten days after the proceedings have been entered on his estray book, transmit to the county clerk a certified copy thereof, to be by him recorded in his estray book and to file the same in his office ... 28. Advertisement ... If the value thereof exceeds the sum of $15, the county clerk, within 20 days after receiving the certified copy of the judge or magistrate’s estray record shall cause an advertisement to be set up on the court house door, and in 3 other of the most public places in the county, and also a notice thereof to be published for 3 weeks successively in some public newspaper printed in this state and if the owner of such goods, money, bank notes, or other choses in action does not appear and claim the same and pay the finder’s charges and expenses within one year after the advertisement thereof as aforesaid, the ownership of such property shall vest in the finder.”

Defendants assert that their initiation of proceedings in accord with the foregoing statute, which is admitted in the complaint, establishes the superiority of their claim, as a matter of law. Defendants also argue that the common law and majority of jurisdictions adhere to the rule which favors the finder of personal property against all others but the real owner.

We think it apparent that the statute to which defendants make reference provides a means of vesting title to lost property in the finder where the prescribed search for the owner proves fruitless. This statute does not purport to provide for the disposition of property deemed mislaid or abandoned nor does it purport to describe or determine the right to possession against any party other than the true owner. The plain meaning of this statute does not support plaintiff’s position that common law is wholly abrogated thereby. The provisions of the statute are designed to provide a procedure whereby the discoverer of “lost” property may be vested with the ownership of said property even as against the true owner thereof, a right which theretofore did not exist at common law. In the absence of any language in the statute from which the contrary can be inferred it must be assumed that the term “lost” was used in its generally accepted legal sense and no extention of the term was intended. Thus the right to possession of discovered property still depends upon the relative rights of the discoverer and the owner of the locus in quo and the distinctions which exist between property which is abandoned, mislaid, lost or is treasure trove. The statute assumes that the discoverer is in the rightful possession of lost property and proceedings under such statute is not a bar where the issue is a claim to the contrary.

There is a presumption that the owner or occupant of land or premises has custody of property found on it or actually imbedded in the land. CJS, Finding Lost Property, section 8, subsection a (2c) and section 22, page 20, 1 Am Jur2d, Abandoned, Lost, Etc., Property. The ownership or possession of the locus in quo is related to the right to possession of property discovered thereon or imbedded therein in two respects. First, if the premises on which the property is discovered are private it is deemed that the property discovered thereon is and always has been in the constructive possession of the owner of said premises and in a legal sense the property can be neither mislaid nor lost. Pyle v. Springfield Marine Bank, 330 Ill App 1, 70 NE2d 257. Second, the question of whether the property is mislaid or lost in a legal sense depends upon the intent of the true owner. The ownership or possession of the premises is an important factor in determining such intent. If the property be determined to be mislaid, the owner of the premises is entitled to the possession thereof against the discoverer. It would also appear that if the discoverer is a trespasser such trespasser can have no claim to possession of such property even if it might otherwise be considered lost. CJS, section 5 (c 1 & 2), Niederlehner v. Weatherly, 73 Ohio App 33, 54 NE2d 312.

A motion to dismiss admits all facts well pleaded as well as all reasonable inferences therefrom favorable to the plaintiff. A complaint is not required to set forth the facts in evidentiary terms. Much of defendants’ argument concerning the insufficiency of the complaint relates to what can or cannot be supported by evidence. The facts as alleged in substance are that the Plaintiff was the owner and in possession of real estate, that the money was discovered in a private area of said premises in a bottle partially imbedded in the soil and that such property was removed from the premises by the finders without any right or authority and in effect as trespassers. We believe the averment of facts in the complaint substantially informs the defendants of the nature of and basis for the claim and is sufficient to state a cause of action.

The judgment of the Circuit Court of Fulton County is reversed and the cause is remanded with directions to proceed in accordance with this opinion.

Judgment reversed and remanded with directions.

ALLOY, P. J. and CULBERTSON, J., concur.