author: MR. PRESIDING JUSTICE DRUCKER

text:
    The Northern Trust Company, as Trustee Under the Will of Helen B. North, Plaintiff-Appellee, v. Esther L. North, et al., and Board of Regents of University and State Colleges of Arizona, Sonja Pinkham North, et al., and Unknown Owners, Defendants-Appellees, and The Valley National Bank of Arizona as Trustee Under the Will of David Brindley North Sued Herein as Valley National Bank, Trustee Under the Will of David Brindley North, Defendant-Appellant, and Richard W. Wolcott and The Northern Trust Company, Executors Under the Will of Robin Perle Dienst, The Northern Trust Company, Trustee Under Said Will, Henry E. Morris, et al., Defendants-Cross-Appellants.
    Gen. No. 50,776.
    First District, Fourth Division.
    July 29, 1966.

      Lord, Bissell & Brook, of Chicago (Theodore C. Diller, Graydon H. Ellis and Charles H. Weiland, of counsel), and Holesapple, Conner, Jones, McFall & Johnson, of Tucson, Arizona, for defendant-appellant.

      Robert W. Qualey, of Geneva, for defendants-cross-appellants.
    Spray, Price, Hough & Cushman, of Chicago (Winfield T. Durbin and Minard E. Hulse, Jr., of counsel), for defendants-appellees.
    Morrill, Manning, Parker, North, Harkins & Manning for plaintiff-appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal and cross-appeal from a judgment construing that portion of a will relating to the disposition of the remainder interest in trust property upon termination of a life estate.

Plaintiff (The Northern Trust Company, as Trustee under the Will of Helen B. North) brought this action requesting the court to construe the will of Helen Brigham North and to instruct it as trustee thereunder as to the distribution of certain trust property. The will in question, executed on October 5, 1938, named as beneficiaries David Brindley North, her adopted son, Henry A. North, a brother, Dorothy North Haskins, a sister, and Robin Perle Dienst, a friend. The testatrix died in 1941; Henry A. North died in 1944; David Brindley North died in 1956 at the age of forty-one leaving a wife but no descendants; Robin Perle Dienst died on March 3, 1962; Dorothy North Haskins died on December 1, 1962, prior to the distribution to her of any share of the trust property. The Valley National Bank, trustee under the will of David Brindley North, is the appellant and the legal successors of Henry A. North and Dorothy North Haskins are the appellees. A cross-appeal is taken by the executors under the will of Robin Perle Dienst.

In Article III of her will the decedent established a trust, the property of which consisted of shares of stock, and directed that the income and res thereof be distributed in relevant part as follows:

Section 1 contains bequests of specific sums of money to specified persons “who may be living at the time of my death” and orders the trustee to set aside and apply trust income for a period of three years to satisfy those bequests.

Section 2 provides that Robin Dienst (a friend of the decedent) shall have a life estate in the income of one-half of the trust property and also establishes an estate in the trust for David Brindley North, the legally adopted son of the decedent.

Section 4 states that David North shall have a remainder interest in the life estate of Robin Dienst.

Section 5 disposes of the principal of the trust estate if David North survived the testatrix but died before receiving all of the trust estate, and provides in pertinent part:

[I]f he [David North] shall survive me and die before he shall have received all of said trust estate as aforesaid then upon his death, all of the remainder of said trust estate, including the share aforesaid held for the primary benefit of ROBIN PERLE DIENST . . . [subject to Robin Dienst’s life estate] be held by my said Trustees for the benefit of and shall vest, share and share alike, in the descendants of my said adopted son who shall then be living, or if no descendents of his are then living, the same shall be held by my said Trustees for the benefit of and shall vest in my sister, DOROTHY NORTH HASKINS, and my brother, HENRY A. NORTH, share and share alike, if they both survive me, or if either of them does not survive me, then in the survivor of them, and distribution to said beneficiaries shall be postponed . . . [specifying the time of distribution]. Nothing in this Section 5 contained shall in any way affect the payment of income to ROBIN PERLE DIENST for and during her natural life derived from that certain one-half (%) of the said trust estate. . . .

Article IV of the decedent’s will disposes of the residuary estate.

Article VI of the will provides as follows:

Payments to each beneficiary under any of the provisions of this, my Will, shall be made in person or upon his or her personal receipt and to no one else. No beneficiary shall have any power to sell, anticipate, assign, mortgage, pledge or encumber, in whole or in part, his or her interest under this, my Will, or his or her right to receive the same or any part thereof, and no interest of any beneficiary hereunder shall be subject to seizure on any judgment, attachment, execution or other legal process issued against such beneficiary, or his or her interest hereunder, either at law or in equity, including, without limiting the scope of the aforesaid, any judgment, demand or decree for alimony or support, and any attempted sale, anticipation, assignment, mortgage, pledge or other encumbrance, and any attempted seizure on any judgment, attachment, execution or other legal process shall be absolutely null and void. No interest of any beneficiary shall be liable in any way for such beneficiary’s debts.

The controversy in this case concerns the disposition of the remainder interest in Robin Dienst’s life estate in the trust, the principal issue being the effect to be given Article VI of the will as aforesaid. The trial court determined that it was the intention of the testatrix under the existing factual situation that the remainder interest of Robin Dienst’s life estate in the trust should pass in equal shares to Henry A. North and Dorothy North Haskins. Therefore it awarded one-half of the remainder interest to William S. North as executor of the will of Dorothy North Haskins and one-half of said remainder to the estate of Henry A. North, or to Esther L. North as sole distributee of said estate. With regard to Article VI of the will of Helen North the court stated that:

Article VI of the will is a spendthrift provision restricting transfer of interests prior to the time for the technical termination of the trust on the death of Robin Dienst. It is not a dispositive provision requiring survival of beneficiaries until the time for distribution and does not extend to prevent devolution on death or to prevent beneficial interests from being estates of inheritance or transmissible by will on the death of the holder of the interest. Notwithstanding Article VI the interest of Henry A. North passed under his will and the interest of Dorothy North Haskins passed under her will.

Defendant-appellant argues that the provision of Article VI which directs that payments to each beneficiary be made “in person . . . and to no one else” should be strictly construed so that a remainder interest, which would ordinarily vest at the death of the life tenant or at some prior time, would not become indefeasibly vested unless the remainderman survived actual distribution of the property; that therefore the clause precludes distribution to the executor of a deceased beneficiary of the share of corpus which that beneficiary would have received if living at the time of distribution; that an interpretation of the aforesaid clause which would allow the property to pass to the executor of a deceased beneficiary would subject the property to claims of the latter’s creditors in contravention of the intention of the testatrix; and that since all of the named remaindermen except for Dorothy North Haskins predeceased Robin Dienst, and the former died before distribution to her of any portion of the aforesaid remainder, the property in question therefore passes by intestacy and should be distributed to it (defendant-appellant) as testamentary-trustee of the estate of David North, the testatrix’ sole heir.

Defendant-appellant relies principally upon Routt v. Newman, 253 Ill 185, 97 NE 208; First Nat. Bank of Chicago v. Cleveland Trust Co., 308 Ill App 639, 32 NE2d 964; and Cowdery v. Northern Trust Co., 321 Ill App 243, 53 NE2d 43.

In Routt v. Newman, supra, the will of Caroline Newman devised certain real estate to William Routt in trust to pay the net income therefrom to her four sons, “one-fourth to each in person, and not upon any written or verbal order or upon any assignment or transfer by either or any of her sons.” Under the terms of the will the trust was to terminate upon the death of all of the testatrix’ sons. The will further provided that:

Upon the decease of either or any of my said sons during the continuance of this trust, his share of the remaining income shall go to the child or children of his body during the continuance of this trust, and in case said son leaves him surviving no lawful child or children of his body, then one-half of his said share shall go to his surviving widow (during her lifetime) ....

One of the sons died after the testatrix, leaving a son and widow, but that child died prior to the termination of the trust. However, the will provided no alternative disposition of the income under those circumstances. The widow of the deceased son (Charlotte L. M. Newman) claimed that portion of the trust income which would have been paid to her own son (testatrix’ grandchild) had the child survived until the termination of the trust. The court, after examining the testatrix’ will to ascertain her intention, denied Charlotte Newman’s claim. While pointing out that the words of the will would ordinarily indicate that the grandchild of the testatrix shall receive the income until the termination of the trust upon the death of the last surviving son of the testatrix, the court stated at pages 189,190 that:

There is, however other language in the will entirely inconsistent with the continuance of the payment of the income to the representative of a deceased child of one of the sons. It is provided that “any person under the terms of this said trust who shall become the recipient of the said remaining income, or any portion thereof, shall have same paid to him, her or them in cash and in person into their hands, and not to be paid upon any written or verbal order nor upon any assignment or transfer by any such person.” The continued existence of the recipient of the fund was necessary to a compliance with this requirement. The portion of testatrix’s property included in the trust was manifestly intended to be placed beyond the reach of creditors of the beneficiaries, and that object was an important part of her scheme. She gave other property to her sons in fee simple, but the control of this portion she intended should be so restricted that neither the land itself nor the income could be reached by any creditors during the lifetime of any of her sons. The language quoted is first used in regard to the sons and is then repeated as applying to their children, and in our judgment limits the time during which a share of the net income shall be paid to any child of a son, to his lifetime.

It might be said that this language does not exclude Charlotte L. M. Newman, but only makes payment of the income to her subject to the same terms as the payment to her son. But Charlotte L. M. Newman cannot become the recipient of the income under the terms of the trust. She is not mentioned in the will nor is she within any class mentioned in the will. If she receives any part of the income it is as the next of kin of her son, to whom, only, it is given under the terms of the trust. If the payment to her son does not terminate with his death, then such payment must be made to an administrator, who would then be the recipient under the terms of the trust, and would administer the sum received from the income, together with all the assets of the estate, according to law, and pay it, without restriction, to the persons entitled to receive it. It happens that the son here died during his minority, but this cannot affect the character of his interest. Had he been an adult, able to contract debts, the effect of the continuance of the payment of the income after his death would have been to subject the income to the payment of his creditors. This would be a manifest perversion of the intention of the testatrix, by the creation of the trust, to prevent this very thing.

We would point out that the court in Routt v. Newman, supra, examined the will of the testatrix to ascertain her intention vis-a-vis the “in person” clause; and that the holding of the court was not repugnant to any express provision in her will. On the contrary, the “in person” provision of the spendthrift clause was entirely consistent with, and, indeed, was employed in dispositive context as an integral part of the dispositive provisions of the will.

In First Nat. Bank of Chicago v. Cleveland Trust Co., 308 Ill App 639, 32 NE2d 964, the construction of two wills was involved: first, that of John F. Taylor, which in part established a trust which was to terminate upon the death of the last surviving income beneficiary (one of which being Lillian Ludlow) and provided that upon termination thereof his widow had a power of appointment; and second, that of his widow (Jennie Taylor) which appointed the heirs of Sarah P. Prall (one of which being Lillian Ludlow) to a one-third interest. The court set forth the issue at pages 650, 651 thusly:

In considering the principal controversy involved, namely, whether Lillian P. Ludlow was appointed to receive any part of the remainder of the trust estate, two primary inquires arise: (1) whether the will of John F. Taylor, construed in the light of his surroundings and circumstances, empowered Jennie B. Taylor to appoint Lillian P. Ludlow, who necessarily would be dead at the time of the distribution of the. property then in the possession'.'bf‘. the ■ trustee; ancf (2) whether Jennie B. Taylor intended to appoint Lillian P. Ludlow. The answer to these questions necessitates an inquiry into the general plan of the will of John F. Taylor, the state and condition of his family, and significant portions of his will, including the so-called spendthrift provision contained in Article VI, and a like inquiry into the general plan of the will of Jennie B. Taylor, the state of her family and significant portions of her will.

After discussing the provisions in John Taylor’s will the court stated at page 655 that:

We revert to the first inquiry, whether the will of John F. Taylor, construed in the light of his surroundings and circumstances, empowered his wife to appoint Lillian P. Ludlow, who necessarily would be dead at the time of the distribution of the property then in the possession of the trustee. It is apparent from the various provisions of the will hereinbefore set forth that it was John F. Taylor’s intention that only living beneficiaries should take thereunder.

The court then, in response to the contention that the spendthrift clause (Article VI of the testator’s will) conclusively indicated that vesting must be postponed until distribution, pointed out at page 657 that:

As heretofore pointed out, the language of this article directs that payments be made to all beneficiaries in person or upon their personal receipt, and it prohibits the assignment or other anticipatory disposition of any interest in the principal by any beneficiary prior to distribution. It is indeed difficult to conceive that if this article of the will is to be taken into consideration and given effect how any conclusion harmonious with the vesting prior to distribution could fairly be reached.

While the court found that the spendthrift clause “is to be considered with the whole will in determining the intentions and plan of John F. Taylor in disposing of his estate,” we would point out (1) that the court subsequently determined that Jennie Taylor never intended to exercise the power of appointment in favor of Lillian Ludlow; (2) that the holding of the court was not repugnant to any express intention of the testator; and (3) that the court construed the will of John Taylor in the light of his surroundings and circumstances.

In Cowdery v. Northern Trust Co., 321 Ill App 243, 53 NE2d 43, the two trusts in question contained spendthrift clauses, both of which included a provision that “all payments of net cash income . . . shall be made to such beneficiaries in person or upon their personal receipt” and in addition provided that none of the income arising from the trust estate shall “ever at any time or in any part be subject to the claims of creditors of the respective beneficiaries.” After the death of one of the beneficiaries the question arose as to whether accrued income should go to the beneficiary’s estate or whether it should be divided among the two remaindermen. In concluding that the testator intended the latter the court stated at page 264:

When the settlor directed that none of the income arising from his trust estate or the respective trust funds, or any share or part thereof, shall “ever at any time or in any part be subject to the claims of creditors of the respective beneficiaries,” he precluded the passing of any part of that income to the estate of any beneficiary.

As in Routt v. Newman, supra, and First Nat. Bank of Chicago v. Cleveland Trust Co., supra, the court’s holding was not repugnant to any express provision of the testator’s will.

In none of the aforesaid cases, nor in any other case of which we are apprised, is the conclusive rule established that all such “in person” clauses should be construed in a similar manner. Rather, in all of those cases the courts construed the respective “in person” clauses in light of the intention of the testator as ascertained upon examination of the testator’s entire will, and in none of those cases was. the judicial construction of the clause repugnant to any express intention of the testator. In the instant case the testatrix directed in Section 1 of Article III of her will that the trustee set aside and apply trust income over a period of three years to satisfy specific bequests of money to specified persons “who may be living at the time of my death.” Under the construction advanced by the defendant-appellant, however, none of the aforesaid persons would be entitled to that bequest of trust income unless he or she survived actual distribution thereof, even though the testatrix specifically made the gift contingent only upon them surviving her. Moreover, we do not believe that it was the intention of the testatrix that the vesting of a bequest under her will should depend upon the whim or lack of diligence of a trustee who does not distribute the property in question as promptly as he should. (See Wiener v. Severson, 11 Ill2d 347, 352, 143 NE2d 225.)

In LaSalle Nat. Bank v. MacDonald, 2 Ill2d 581, 119 NE2d 266, the conservator of an incompetent’s estate brought an action against the trustee of a testamentary trust (the incompetent being a beneficiary of the corpus thereof) in which it alleged that the trust had, by its terms, terminated and requested that the court order the trustee to deliver up that portion of the corpus which would have been distributed to the incompetent had the trustee relinquished control when the trust was to end. The trustee argued that she could not terminate the trust because a conservator had been appointed prior to the supposed termination date thus making it impossible to comply with a requirement of the testator’s will that “payments to all beneficiaries of my estate be made to such beneficiaries in person or upon their personal receipt.” The Supreme Court, refusing to strictly apply the spendthrift clause without first examining the testator’s entire will to determine his intention, held in favor of the conservator and referred to the clause as “a stock spendthrift clause.” The court stated at page 587 that:

[I] t does not follow that the [testator] intended also to abandon his clearly expressed purpose that distribution occur at the end of twenty years.

In its holding the court determined that by the use of the word “payments” the testator intended the aforesaid clause to be applied only to “payments” of income and not to “distribution” of corpus. At no point in its opinion did the court refer to the Routt, Cleveland Trust or Cowdery cases, supra, nor did it choose to resolve the apparently open question of whether the “stock spendthrift clause” would automatically preclude termination of the trust if its scope were not limited to “payments” of income.

In Costello v. Warnisher, 4 Ill App2d 571, 124 NE2d 542, the court had before it a will containing a spendthrift clause which provided in part that “I direct that the payments to all beneficiaries of my estate be made to such beneficiaries in person or upon his or her personal receipt.” The court stated at page 585:

Appellants urged that the “spendthrift” clause of the will requires payment to be made directly to the beneficiaries and that consequently no payments could be made to . . . the administratrix of Frank’s estate [Frank being a deceased beneficiary]. . . . The “spendthrift” clause is a formal provision designed principally to avoid frustration of the testator’s intentions by the claims of creditors .... [I]t must yield to the testator’s intention as derived from the language of the dispositive provisions of the will.

Construing Article VI of Helen North’s will in light of other provisions of the will, we find that it was her intention that the “in person” clause be construed only as effectuating the purpose of the spendthrift provision itself and not for any dispositive purpose. Consequently it does not have the effect of postponing the vesting of any interest, otherwise vested, until the time of actual distribution.

In determining that Dorothy North Haskins and Henry A. North were entitled to the property in question the trial court stated:

It was the intention of testatrix, Helen B. North, that, under the existing factual situation, the trust property should pass, subject to the life estate in Robin Perle Dienst, to Helen B. North’s brother, Henry A. North, and her sister, Dorothy North Haskins, share and share alike. By reason of the death of Henry A. North leaving his estate to his widow, Esther L. North, his share passes as part of his estate to her.

The intention found in the preceding paragraph ... is expressed in Section 5 of Article III of the will where it is provided that, if David Brindley North should die before Robin Perle Dienst without leaving a descendant living, the property should, subject to the life estate, be held for and vest in her sister Dorothy and brother Henry if they survived testatrix. The trust property is disposed of by Article III of the will.

Neither the death of Henry A. North before David Brindley North nor the death of Dorothy North Haskins after the deaths of both David and Robin Perle Dienst defeats Henry’s or Dorothy’s interest, which is conditioned by the terms of Section 5 of Article III only on his or her surviving testatrix. No rule of law or of construction prohibits the intention of testatrix as found . . . above.

Defendant-appellant contends that if the “in person” clause does not bar distribution to the executors and legatees of trust beneficiaries, that under Section 4 of Article III of Helen North’s will David North possessed a vested remainder which was subject to total divestment only if (1) he predeceased Robin Dienst leaving no descendants, and (2) Henry North and Dorothy North Has-kins survived him; that since the latter alone survived David North only one-half of the remainder interest was divested; that since Henry North predeceased David North one-half of the remainder interest was not divested and therefore it passed to the appellant as testamentary trustee under the will of David North.

Cross-appellants (Robin Dienst’s executors) contend that in the event David North predeceased Robin Dienst his continued interest in the remainder was contingent upon his leaving issue; that the interests of Henry North and Dorothy North Haskins were contingent upon their surviving David North; that since David north predeceased Robin Dienst without leaving issue, and Henry North predeceased David North, that portion of the remainder interest otherwise attributable to Henry North passed under the residuary clause (Article IV) of the testatrix’ will in equal shares to the appellant and cross-appellants.

Article III, Section 4, of the will which grants the remainder interest to David North, provides:

Upon the expiration of three (3) years from the date of my death, if my said adopted son is then living and shall have attained the age of thirty-five (35) years or if he is under such age then upon his attainment of such age, my Trustee shall pay over, assign and deliver to him, if my friend, ROBIN PERLE DIENST, is living, the share of the trust estate then held for his primary benefit as aforesaid, ... or if my said friend shall then be dead my said Trustees shall pay over, assign and deliver to my said adopted son the entire trust estate, together with all accumulated income. If my friend, ROBIN PERLE DIENST, survives me and subsequent to the expiration of three (3) years from the date of my death predeceases my said adopted son after he shall have attained the age of thirty-five (35) years, then upon her death my said Trustees shall pay over, assign and deliver to my said adopted son all of the share of the trust estate theretofore held for the primary benefit of my said friend, ROBIN PERLE DIENST.

There is no question but that it was the intention of the testatrix to grant to her son, David North, a remainder interest of some type in Robin Dienst’s life estate in the trust. While she used the word “if” in disposing of the remainder interest, it is clear from the aforesaid provision read in conjunction with other portions of the will that the testatrix intended the word “if” to refer to the time of distribution of the trust corpus and not to the time of vesting of any interest therein. The testamentary scheme was that David should not have complete control over all of the income and corpus of the trust until he was at least thirty-five years old, and the word “if” was frequently used in that context. While in Section 2 of Article III the testatrix gave to David North a vested interest in certain undistributed trust income, the word “if” is used on several occasions in Section 2 to refer to the distribution of that vested interest, providing:

If my said adopted son attains thirty-five (35) years of age before my death, then from the time of my death, or if he attains such age within three (3) years from the time of my death, then from the time he attains such age and while he and ROBIN PERLE DIENST are both living, my said Trustees shall pay to him all of the remaining net income derived from the share of said trust estate held for his primary benefit as aforesaid until the expiration of said three (3) year period.

In the same context the word “if” is used in Section 3 of Article III to dispose of the income from the life estate of Robin Dienst after her death.

Therefore, by the aforesaid language of Section 4, it can be seen that it was the intention of the testatrix merely that the remainder interest in Robin Dienst’s life estate should not be distributed to David North under any circumstances unless he shall have attained the age of thirty-five years at least three years subsequent to the death of the testatrix. We would also point out that the testatrix, in Section 4, used the words “pay over, assign and deliver to my said adopted son” when referring to the remainder interest, further indicating that the remainder had vested but was to be distributed at that specified age at "the earliest.

The law prefers the vesting of estates at the earliest possible time and, where either of two constructions is possible, the construction that a devise is vested and not contingent will be adopted. Riddle v. Killian, 366 Ill 294, 8 NE2d 629. The fact that the remainder-man may die before the life tenant and the remainder never become vested in possession is not a test of whether the remainder is vested or contingent. A remainder interest is vested if there is a present capacity to take effect in possession if the life tenant dies or for any reason the life possession becomes vacant. Fleshner v. Fleshner, 378 Ill 536, 39 NE2d 9. We find that under Section 4 of Article III David North was given a vested remainder in Robin Dienst’s life estate in the trust property.

However, Section 5 of the will directs that David North’s vested remainder shall be divested if he dies before receiving all of the trust property. We repeat its provisions:

f he [David North] shall survive me and die before he shall have received all of said trust estate as aforesaid then upon his death, all of the remainder of said trust estate, including the share aforesaid held for the primary benefit of ROBIN PERLE DIENST . . . [subject to Robin Dienst’s life estate] be held by my said Trustees for the benefit of and shall vest, share and share alike, in the descendants of my said adopted son who shall then be living, or if no descendants of his are then living, the same shall be held by my said Trustees for the benefit of and shall vest in my sister, DOROTHY NORTH HAS-KINS, and my brother, HENRY A. NORTH, share and share alike, if they both survive me, or if either of them does not survive me, then in the survivor of them, and distribution to said beneficiaries shall be postponed . . . [specifying the time of distribution] . Nothing in this Section 5 contained shall in any way affect the payment of income to ROBIN PERLE DIENST for and during her natural life derived from that certain one-half (%) of the said trust estate ....

While this section provides for alternative distributions in case of divestiture, the testatrix clearly intended divestiture to be dependent solely upon David North’s dying prior to his receiving all of the trust property. Moreover, upon an examination of this section, we do not find that it was the intention of the testatrix that Henry North survive David North in order for any interest to be vested in him. The only requirement of Henry North’s survival is that he survive the testatrix. If the testatrix had intended that the interest would not be vested in Henry North prior to the death of David North, she could have included such a provision in her will. Testatrix was obviously aware of her ability to so provide since she similarly provided in two separate instances: first, in the divestiture of David North’s remainder interest; and, second, in providing for the specific contingency that Henry must survive the testatrix in order to receive any interest whatsoever. We would also point out that the testatrix used the word “vest” in referring to Henry’s interest if he should survive the testatrix. We find that Henry A. North was granted an executory interest in the property in question.

There is no dispute but that Dorothy North Haskins (or the executor under her will) is entitled to one-half of the remainder interest in Robin Dienst’s life estate since Article VI of the testatrix’ will does not bar her interest from taking effect. Moreover, since the interest of an executory devisee passes to his estate if he predeceases the occurrence of the contingency which divests the freehold estate (Fitzgerald v. Daly, 284 Ill 42, 119 NE 911) the other one-half interest in the aforesaid remainder properly passed to the estate of Henry A. North. Therefore, the interest of David North being divested upon his death, the trial court was correct in its determination that the remainder interest of Robin Dienst’s life estate in the trust should pass in equal shares to Henry A. North and Dorothy North Haskins.

The judgment of the trial court is affirmed.

Affirmed.

ENGLISH and McCORMICK, JJ., concur.

       As an example, one of these dispositive paragraphs is as follows (quoted by the Appellate Court in Routt v. Newman, 159 Ill App 456, 457; immaterial matter being omitted where indicated, and emphasis supplied);
      “First, a.....to pay over all remaining rents and income in cash as follows, to-wit: One-fourth of said remaining income into the hands of my said son, Harvey R. Newman, in person; one-fourth of said remaining income into the hands of my said son, Benjamin L. Newman, in person; one-fourth of said remaining income into the hands of my said son Charles S. Newman in person and one-fourth of said remaining income into the hands of
        my said son Henry J. Newman in person, and the said remaining income is not to be paid upon any written or verbal order nor upon any assignment or transfer by either or any of my said sons, Harvey R. Newman, Benjamin L. Newman, Charles S. Newman and Henry J. Newman.”

       The exact language of Section 5 is: “shall vest in my sister, Dorothy North Haskins, and my brother, Henry A. North, share and share alike, if they both survive me.”

       In Section 2 of Article III the will provided that the trustees were to hold one-half of the corpus for the benefit of Robin Dienst and that:
      [The trustees shall] hold the other half of said trust estate for the primary benefit of my adopted son . . . and while he and . . . ROBIN PERLE DIENST are both living my said Trustees shall pay to him one-half (%) of all the remaining net income derived therefrom until he attains the age of thirty-five (35) years, the undistributed portion of said remaining net income to be accumulated by my said Trustees during such period and paid to my said adopted son when he attains such age.
      Since words of immediate gift prevent a gift distributable in the future from being contingent on survivorship (Howe v. Hodge, 152 Ill 252, 38 NE 1083), the interest of David North in the undistributed trust income as aforesaid was clearly vested.


source: Caselaw Access Project

author: TRAPP, P. J.

license: Public Domain

text:
    The People of the State of Illinois for the Use of Tabor & Co., a Corporation, Plaintiff-Appellee, v. Farmers Elevator Mutual Insurance Company, a Corporation, Defendant-Appellant.
    Gen. No. 10,728.
    Fourth District.
    July 7, 1966.

      Craig & Craig, of Mattoon (Jack E. Horsley and John P. Ewart, of counsel), and Fleur & Bell, of Des Moines (Paul D. Wilson, of counsel), for appellant, Farmers Elevator Mutual Insurance Company.
    LeForgee, Samuels, Miller, Schroeder & Jackson, of Decatur (Jerald E. Jackson, Thomas S. Sly, and Nicholas J. Neiebs, of counsel), for appellee.
   TRAPP, P. J.

Defendant appeals from a judgment entered in the amount of $10,196.65.

This action was brought in the name of The People of the State of Illinois for the use of the plaintiff, Tabor & Company, to recover damages against the defendant, Farmers Elevator Mutual Insurance Company (hereinafter referred to as defendant), under the provisions of a Grain Warehouse Bond, wherein Loda Farmers Grain Company (hereinafter referred to as Loda) of Loda, Illinois, was the principal, Farmers Elevator was the surety, and The People of the State of Illinois were the obligees. In its complaint, the plaintiff alleges that it purchased from Loda 16,000 bushels of yellow corn, evidenced by its warehouse receipt number 677; that Loda failed to deliver grain valued at $10,191.65 on demand, and that because of said failure, the defendant is obligated, under the bond, to make restitution.

Defendant’s pleading denies that there was any obligation to deliver grain; denies that plaintiff purchased 16,000 bushels of corn and admits a warehouse receipt No. 677 (hereinafter referred to as “receipt”) was delivered to plaintiff; but denies that such “receipt” was “effectively made” and denies any rights in the plaintiff by reason of such “receipt”; defendant admits that a written demand for the delivery of grain was made by plaintiff but denies that there was any duty upon the part of Loda to deliver such grain. As a special affirmative defense made in the alternative, defendant contends that plaintiff sold the corn to Loda for an agreed value of $8,000 and that the “receipt” was returned to Loda, cancelled, and the obligations of Loda thereunder satisfied and discharged in full, so that defendant has no duty or liability by reason of the obligation of its bond.

The trial court made an express finding that Loda had purchased the corn for which the “receipt” was issued, and that such “receipt” was issued by Loda “in due course of business.”

In support of its contention that the “receipt” was a nullity, defendant, in oral argument, urges that plaintiff participated in a fraud in procuring the issuance of the “receipt” and should be estopped from making a claim.

The transaction arises under the following facts:

Plaintiff engages in the buying and selling of grain in vast amounts. In the early part of 1963 it had, upon several occasions, purchased grain for immediate delivery from Loda. In these transactions Loda drew drafts upon bills of lading. About the first of May, one Ronna, the manager of Loda, engaged in a telephone conversation with one Wells, a representative of plaintiff. Wells asked to buy corn from Loda, to which Ronna responded that Loda did not have the money to buy corn. Wells then said that if Loda “wanted to buy it” to make out a warehouse receipt. Plaintiff’s Exhibit B is a “purchase contract” sent by plaintiff to Loda authorizing the purchase of 16,000 bushels of corn, affirming a purchase of May 1st at $1.14% per bushel for shipment “equal 1st half June and last half June.” This instrument contained instructions that drafts should be drawn on plaintiff through the Milliken Bank in Decatur.

Ronna, manager for Loda, was called by defendant as its witness. He testified that at the time of the conversation with Wells, although Loda did not own corn in the elevator, there was stored corn belonging to the Commodity Credit Corporation, for which warehouse receipts had been issued in an amount equal to or greater than the amount of plaintiff’s proposed purchase. Ronna testified further to the practice of Commodity Credit Corporation whereby Loda could buy corn from Commodity Credit Corporation by calling it and asking for the price, and the latter would thereupon draw a draft for the amount of the corn, and it would be considered sold to Loda, which was then free to sell it. He further testified that Loda did get the corn from the Commodity Credit Corporation and that, in this ease, he issued the “receipt” to plaintiff for com which was there.

The “receipt” in negotiable form, in issue, bears date May 1, 1963, and stated that the corn was “received for the account of” plaintiff. Data inserted in the “receipt” in handwriting, indicates that the corn was deposited on August 10,1962. So far as the Abstract discloses, the “receipt,” with a draft in the sum of $18,000 drawn upon the plaintiff, was deposited in the Bank of Paxton about May 3, 1963. The proceeds of the draft were deposited to the account of Loda.

There is no contention that the “receipt” in issue was illegal upon its face.

Defendant contends, however, that the “receipt” is a nullity or a false “receipt” because no corn was, in fact, delivered by the plaintiff, and that plaintiff did not own grain for which the “receipt” was issued, and that Loda did not own the grain in the amount called for in the “receipt” when said “receipt” was issued, all of which were facts then known to plaintiff through its representative. It is further contended that the transaction only created a relationship wherein plaintiff was creditor and Loda was a debtor for the purpose of buying corn for the several reasons stated.

It is urged that the “receipt” was issued in violation of chap 114, § 214.21 (Ill. Rev Stats, 1963), which provides, among other things, that:

“. . . no warehouse receipt shall be issued except upon the actual delivery of grain into store in the warehouse from which it purports to be issued, and which is to be represented by the receipt, . . . .”

In its reply brief, defendant urgently insists that plaintiff’s representative knew that plaintiff was .not actually delivering grain into the warehouse, and that by reason of the foregoing section of the statute, plaintiff was a holder taking a “receipt” which it knew was illegal, so that it has no cause of action against the defendant.

As noted above, the corn was then stored in the elevator. The argument seems to require the premise that as to a particular lot of grain, a warehouse receipt can only be issued upon its initial delivery into the elevator. However, chap 114, §214.26 (Ill Rev Stats, 1963), provides that a new receipt may be issued to a lawful holder, and the relevant portions of the Commercial Code, chap 26, § 7-501 et seq. (Ill Rev Stats, 1963) contemplate negotiation of warehouse receipts between the parties interested. Chap 114, § 214.27 (Ill. Rev Stats, 1963), specifying the penalties, in par (a), provides a penalty for the issuance of a warehouse receipt by an operator knowing that the grain has not actually been received, or is not under his actual control at the time of issuance of the receipt.

It appears, therefore, that § 214.21 fundamentally means that no warehouse receipt shall be issued for grain which isn’t there, or for which lot or interest in grain a warehouse receipt is outstanding, i. e., a given interest shall not be represented by more than one receipt. Accordingly, we do not agree with defendant’s contention that plaintiff could not legally become a holder of the “receipt” unless it actually delivered grain to Loda.

We believe that the evidence is clear that at the time of the conversation between Ronna for Loda and Wells for plaintiff there was corn owned by the Commodity Credit Corporation in storage in Loda’s elevator in an amount sufficient to cover the “receipt.” There is, in fact, no testimony or other evidence to the contrary.

Defendant strongly urges that the transaction arranged called for plaintiff to advance money to Loda for the purchase of grain, and to issue the “receipt” upon subsequently acquired grain. There is nothing in the Abstract which compels such an interpretation of the evidence. It appears that the substance of the transaction, as presented by plaintiff, was that if Loda wanted to buy grain to sell to plaintiff, it should deposit a draft with a warehouse receipt as evidence of title. Except as to time of delivery the transaction was of the same nature as in those instances when Loda sold com to plaintiff by drawing a draft upon the latter, which was deposited with a bill of lading. In fact, plaintiff’s Exhibit D, being the written affirmation of the contract, is in a form which calls for a bill of lading. Under the evidence, the date May 1st appearing upon the “receipt” should not control the rights of the plaintiff, but rather such were determined when plaintiff became obligated by reason of the deposit of the “receipt” and the draft with the Bank of Paxton. Under the matters in evidence, as set out in the Abstract, there is no reason requiring the conclusion that plaintiff, or its representative, had reason to believe that Loda would issue the “receipt” in an illegal manner or at a time when it did not have title to the com.

Defendant relies upon Central Nat. Bank of Mattoon v. Fidelity & Deposit Co. of Maryland, 324 F2d 830; Fidelity State Bank v. Central Surety & Insurance Corp., 228 F2d 654, and Central States Corp. v. Luther, 215 F2d 38. In each of these cases the court held that the warehouse receipt was illegal upon its face and that the holder thereof, by reason of the apparent illegality of the receipt, would take no right or interest therein. There is no illegality appearing on the face of the “receipt” in issue, and the evidence does not support the contention that plaintiff was participating in a transaction which was fraudulent or designed to create an illegal warehouse receipt. The finding of the trial court that the “receipt” was issued in due course of business and that Loda purchased the corn and thereafter transferred title by its “receipt” to plaintiff, is fully justified under the evidence.

It is urged also, in the alternative, that the grain called for in the “receipt” was actually sold by plaintiff to Loda as evidenced by checks in the total sum of $18,000, and by the fact that the “receipt” in issue, plaintiff’s Exhibit B, is endorsed upon its face, “can-celled Aug. 2, 1963.” The evidence upon this proposition requires careful scrutiny. Defendant’s witness, Ronna, upon cross-examination, testified that nothing was said to or by the plaintiff concerning the purchase back by Loda.

Defendant’s Exhibit A is a check dated July 22, 1963, signed by Ronna, from Loda to plaintiff in the sum of $10,000. The evidence upon this transaction comes in the testimony of Ronna. He states that plaintiff, at various times, requested that the corn be shipped “against this receipt,” and he further testified that:

“I shipped corn at that time, but we drew money against it. Our payment by check was not because we didn’t have the corn at that time. I shipped some of the corn but not the full amount.”

Defendant’s Exhibit B is a check signed by Ronna, dated July 25, 1963, payable to plaintiff in the sum of $2,000. This transaction seems to be of the same nature as that in defendant’s Exhibit A. This check was returned with the notation that the account was closed and “nonpayment wired.” As to these transactions, it appears that plaintiff’s grain had been shipped as requested, but that Loda had actually received the value of the com by drawing drafts against that which was shipped.

Defendant’s Exhibit C is a check of Loda signed by one Gwendolyn Ennen, bookkeeper acting for Robert Ronna, manager, dated July 30, 1963, in the sum of $6000. This check was dishonored for want of sufficient funds and “nonpayment wired.” The evidence is that Ronna went on vacation on July 25, 1963, and never returned to his employment as manager of Loda. The witness, Ennen, was called by plaintiff and testified that after Ronna left she managed the affairs of Loda, and that on July 29, 1963, two cars of com were shipped pursuant to the request of plaintiff for which she drew a draft in the sum of $2,300, but that on July 30th a representative of plaintiff advised her:

“Don’t draw drafts on corn you are shipping because it is already sold.”

She stated that she asked how much was owed and that she would issue a check. She further testified that Loda was supposed to be shipping corn, but didn’t have enough, and that she thought it would be better “to pay the balance of the corn.”

Again, it appears a reasonable conclusion that Loda had disposed of corn when it had no right to do so, and obtained the proceeds thereof. There is nothing in the transaction to indicate that plaintiff had undertaken to sell its corn to Loda, but, on the contrary, it appears that Loda volunteered to send the check when the mishandling of plaintiff’s corn was disclosed.

Defendant’s position seems unreasonable in the light of the surrounding circumstances, when it is noted that the sum of Loda’s checks is $18,000, or the exact amount paid by plaintiff by its draft of May 3rd, when corn was $1.14 per bushel. The evidence is that by July 23rd the price of corn was $1.23 per bushel, and there is nothing in the record which suggests the reason why plaintiff should sell the corn back to Loda at a price nine cents per bushel below market value.

Again, the record discloses that Loda sought to solve this difficulty by issuing checks when the account was closed. In United States Fidelity & Guaranty Co. v. Long, 214 F Supp 307, the court said:

“. . . The taking of a written obligation from the principal, by a depositor, does not preclude the depositor from recovering on the bond, in the absence of a special agreement that the instrument should be accepted in absolute payment of the obligation. The presumption is that it was accepted on condition that it should itself be paid. . . .”

Nothing in the record justifies the conclusion that plaintiff ever undertook to sell its corn to Loda, and nothing suggests a disposition of the matter in the nature of an accord and satisfaction with regard to its interest in such corn.

The return of the “receipt” on or about Aug 2, 1963, and its endorsement as cancelled by the witness, Ennen, should not deprive the plaintiff of relief under these circumstances. Chap 114, § 214.20 (Ill. Rev Stats, 1963), provides that:

“Upon the delivery of corn from store upon any receipt, . . .”

the receipt shall be cancelled. The return of the “receipt” to Loda when the grain, in fact, had not been delivered, does not empower Loda to impose a binding cancellation upon plaintiff. It is the delivery of the grain, rather than possession of the “receipt,” which requires the cancellation. It is certainly fair to say that Loda is properly charged with notice of whether the grain has been delivered.

In United States v. Merchants Mut. Bonding Co., 242 F Supp 465, the District Court of Iowa considered claims upon a warehouseman’s bond, and found such claims valid even though the warehouse receipt had been surrendered at a time when no grain had been shipped, or grain had been shipped in deficient amounts. That court suggested that even negligence upon the part of the depositor would not bar recovery upon the warehouseman’s bond. Here, there is no evidence that Loda was misled or took any action to its detriment when the “receipt” was returned to it, for its representatives were in a position to know the facts. Chap 114, § 214.23 (Ill. Rev Stats, 1963), provides, with certain reservations which are not now in issue, that a warehouseman is bound to deliver the grain upon the demand by the holder of a receipt, and :

“In case the warehouseman refuses or fails to deliver the goods in compliance with a demand by the holder, the burden shall be upon the warehouseman to establish the existence of a lawful excuse for such refusal.”

The existence of the demand is not denied, and the determination of the amount of the judgment is not challenged. We do not believe that, under the evidence in this case, Loda has met the statutory burden of proof, and that, on the contrary, it appears that plaintiff is the holder of a warehouse receipt for grain who should receive the benefit of the warehouseman’s bond.

The judgment of the trial court is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


author: MR. JUSTICE ENGLISH

text:
    The People of the State of Illinois, Defendant in Error, v. Quincy Snell, Plaintiff in Error.
    Gen. No. 50,602.
    First District, Fourth Division.
    July 20, 1966.

      Lee A. Boye, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joseph R Gill, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Charges

(1) Attempted robbery.

(2) Aggravated battery.

(3) Attempted murder.

Defense at Trial Alibi.

Judgment

After a jury trial, defendant was convicted on all counts and was given concurrent sentences of not less than three nor more than ten years for each crime.

Points Raised on Appeal

(1) Misconduct of the prosecuting attorney deprived defendant of a fair trial.

(2) It was prejudicial error to permit a State’s witness to testify where her name was not furnished to defendant on the indictment or on the list of witnesses.

(3) Cross-examination of a State’s witness was unduly restricted.

Evidence

Testimony of State Witnesses

Charles Estelle

He was a bus driver with the Chicago Transit Authority. On November 21, 1962, at about 1:30 a. m., defendant boarded his bus at 59th Street and Went-worth Avenue in Chicago. After some hesitation, defendant paid his fare and took a seat in the front part of the bus. About six passengers were on the bus at this time. He recalled seeing defendant on his bus on eight or nine prior occasions. The bus was driven along its route in a routine manner until leaving the stop at 32nd Street at 1:45 a. m. At this moment, while the bus was in motion, he found the defendant standing at his right elbow holding a knife in his left hand and asserting, “ [t] his is a stickup.” Estelle rolled out of his seat to confront his assailant. The two men struggled until the bus came to an abrupt halt upon colliding with a lamppost. Estelle fell on his back at the impact while defendant stood over him stabbing at him with the knife. Continuing to defend himself, Estelle called to the other passengers on the bus to assist him, but the response was negative. A passenger pulled the emergency ball [sic] to open the rear door of the bus and there followed a mass exodus. Moments later, Estelle managed to elude the defendant and “broke for the rear door.” He then ran to the front of the outside of the bus where he picked up a plank left on the street by a highway construction crew and took “one big swing” at the defendant. He missed the defendant, but the latter, apparently not wishing to continue the contest, left the scene and proceeded north on Wentworth Avenue. Estelle returned to his bus with wounds in the abdomen and leg. When the police arrived shortly thereafter, Estelle described to them the height and complexion of his assailant, and pointed out the direction in which he had run. Estelle was then taken by fire ambulance to the emergency room at the Michael Reese Hospital. While he was being examined, several police officers entered the room with defendant, whom Estelle identified as his assailant on the bus. This was the only time he was asked to identify the defendant prior to the trial. Estelle remained in the hospital five days for treatment.

Police Officer Ronald Blomstrand

In the early morning of November 21, 1962, he was proceeding in his squad car along the 3000 block on Went-worth Avenue when he was stopped by an unknown male Negro who directed him in pursuit of a short and stocky Negro. The latter went into a yard which was three or four feet below street level. The officer left his car and entered the yard where he found the defendant huddled along a wall, lying on the ground. Upon placing defendant under arrest, he was told by defendant that his name was Henry Johnson. Defendant was taken to Michael Reese Hospital emergency room, where Estelle identified him as the man who had attempted to rob him and had stabbed him on the bus. Defendant fitted the description which Estelle had earlier given to the police.

Testimony of Defendant

He denied his guilt. After drinking throughout the day on November 20, 1962, he took a short nap in the late afternoon and resumed drinking at about 6:30 p. m. Sometime before midnight, he purchased a pint of wine and walked along the alley at 30th Street periodically consuming the wine. At some point along the alley he came to a porch where he lay down, and the next thing he remembered was that an officer was kicking him. He was immediately arrested. He gave the fictitious name of Henry Johnson because he “thought it was one of those drunk and disorderly charges, and when I get picked up on a drunk and disorderly my name is Henry Johnson.” He stated that he had not ridden a C.T.A. bus for almost three months including and prior to the occurrence date.

Testimony of State Rebuttal Witnesses

Marcelletta Smith

(Over objection by defendant, she was permitted to testify as a rebuttal witness.) She was a passenger on the bus driven by Estelle in the early morning of November 21, 1962. Her testimony substantially corroborated that of Estelle, and she identified defendant as the assailant.

Hercules Smith

(He was also permitted to testify over defendant’s objection.) He was a bus driver for the Chicago Transit Authority on the Wentworth Avenue route. He recalled that on November 15, 1962, the defendant had been a passenger on his bus.

Opinion

(1) Defendant first contends that he was denied a fair trial when the State’s Attorney was permitted to inject comments in his final argument before the jury which were not supported by evidence in the record. It has frequently been held that it can be prejudicial error for a prosecutor to make observations in his final argument for which there is no foundation in the evidence introduced at trial. People v. Beier, 29 I112d 511, 194 NE2d 280; People v. Morgan, 20 I112d 437, 170 NE2d 529; People v. Dukes, 12 Ill2d 334, 146 NE2d 14. Here the prosecutor stated:

... he [Estelle] asked for a description of the man, they had brought the man right to him.
Hercules Smith, because he dares to take the stand, is questioned as to his qualifications of driving a bus, nothing is asked of him as to how he recognized the man. So, it is really a short case, it is a question of identification of a man who just previously had held him up, it is a question of the police arriving in the nick of time and pursuing a running man who fits the description. The policeman told you he was chasing a short, stocky man, the man disappeared ....

Defendant argues that the foregoing statement constitutes an allegation that defendant had at some time “held up” Hercules Smith, an event which was not put in evidence at the trial. We cannot agree with this strained interpretation of the words of the State’s Attorney. The State’s Attorney, at this particular juncture of his closing argument, was weaving together all the separate threads of evidence and inferences based thereon submitted at the trial. The testimony of Hercules Smith was brief, the only point of it being to rebut defendant’s claim that he had not ridden a bus in three months inclusive of the date of the occurrence. Accordingly, allusion to such testimony was brief; was separated from the ensuing argument by the words, “So, it is really a short case”; and was interjected on summation amidst reference to testimony of Estelle and the arresting officer. We have no difficulty in concluding that the jury understood the State’s Attorney’s statement concerning a “holdup” to refer to Estelle as the victim and not Smith.

Defendant also contends that the following remarks of the State’s Attorney in his closing argument were so seriously prejudicial as to require a new trial: “Now ladies and gentlemen, the defense would have you believe that this is a happy-go-lucky drunk who happened to fall asleep in a yard several miles from his home. We cannot afford to be naive. This is a vicious individual, he is a robber, he is an armed robber who doesn’t hesitate to attempt to take the life of his victim. The City is not a jungle.” Aside from the fact that no timely objection was made to the above argument, we think that the language quoted was within the range of permissible argument since in essence its effect was merely to reflect unfavorably on the accused and to urge fearless administration of the law. People v. Wright, 27 Ill2d 497, 190 NE2d 287; People v. Moore, 9 Ill2d 224, 137 NE2d 246; People v. Caylor, 386 Ill 501, 54 NE2d 514. Defendant points to other alleged misconduct in the final argument of the State’s Attorney, but, after a careful review of the record, we conclude that the controversial statements were supported by facts in the record, or inferences therefrom, and did not transcend the bounds of legitimate summation. People v. Woods, 26 Ill2d 557, 562,188 NE2d 1.

Defendant further contends that it was reversible error for the State’s Attorney to cross-examine him in regard to a prior conviction. The record shows that defendant was questioned as to whether he had ever been arrested for carrying a knife. Continuing, after defendant’s negative reply, the State’s Attorney said, “As a matter of fact, you spent six weeks in the House of Correction . . . .” Although defendant’s objection, interposed at this point, was overruled by the trial judge, the State’s Attorney did not further pursue the line of questioning.

Generally, it is improper to cross-examine a defendant as to prior convictions. People v. Flynn, 8 Ill2d 116, 133 NE2d 257; People v. Kosearas, 408 Ill 179, 96 NE2d 539; People v. Halkens, 386 Ill 167, 53 NE2d 923. However, where a defendant has himself opened the door to the particular line of questioning on direct examination, he may not claim prejudice. People v. Nastasio, 30 Ill2d 51, 195 NE2d 1411; People v. Ficke, 343 Ill 367, 175 NE 543; People v. Yates, 339 Ill 421, 171 NE 557. We find the latter principle applicable in this case.

On direct examination (apparently for the purpose of emphasizing his claim that he had been drinking on the night of the bus incident) defendant testified that he had been arrested a number of times for drinking — more than three times and maybe more than ten. He then testified that he did not own and he did not carry a knife. On cross-examination defendant said that drinking was not the only thing for which he had been arrested. He further ■ testified, without objection, that he did not carry a knife and had never carried a knife. It was at this point that the State’s Attorney proceeded to ask him if he had been arrested for carrying a knife, which question also drew a denial from defendant, as recited above. We think that this line of questioning to probe further into these denials by defendant was well within the scope of proper cross-examination, under the circumstances.

We are constrained, however, to frown upon the tactic of constructing a foundation for impeachment and then abandoning this objective immediately thereafter. As stated in People v. Sanders, 357 Ill 610, at 622, 192 NE 697: “The question was only proper as an impeachment question, and no effort was made to make the impeachment after laying the supposed foundation therefor. In that situation the question should not have been asked. (People v. Fiorita, 339 Ill 78.) In view of the other evidence in the record, we would not, however, reverse the case by reason, alone, of the asking of this question.” Our position, too, is that on the state of the record any error on this point was harmless. In addition, we are assured that the State’s Attorney acted in good faith when he alluded to defendant’s prior conviction for carrying a knife, since the record shows that the State proved up this prior conviction at the presentence hearing on aggravation.

(2) Defendant next contends that Marcelletta Smith should not have been permitted to testify because her name was neither endorsed on the indictment nor included in the list of witnesses furnished to defendant prior to trial. The testimony of this witness, which was offered in rebuttal to defendant’s alibi testimony, corroborated bus driver Estelle’s identification of defendant. She testified that she observed the entire occurrence. Defendant refers us to some minor discrepancies between Marcelletta Smith’s testimony and that of Estelle, but we note that as to the identification of defendant, the two were perfectly in accord.

Discretion reposes in the trial court to allow an unlisted witness to testify. People v. Kenzik, 22 Ill 2d 567, 177 NE2d 162; People v. Ford, 19 I112d 466, 168 NE2d 33; People v. Kemp, 396 Ill 578, 72 NE2d 855. Only when it appears that defendant has been surprised or prejudiced will the trial court’s ruling be overturned, and the burden of establishing the unfairness is on defendant. People v. Quevreaux, 407 Ill 176, 95 NE2d 62; People v. Weisberg, 396 Ill 412, 71 NE2d 671. Defendant makes the argument that the witness’ testimony should have been introduced in the prosecution’s case in chief. But this argument overlooks the fact that Mrs. Smith’s testimony was in direct rebuttal of defendant’s alibi and was admissible for that purpose. People v. Leach, 398 Ill 515, 526, 76 NE2d 425. Her testimony added nothing to the essential proof adduced in the State’s case in chief, and, if offered at that time, would have been merely cumulative. Nothing in the record indicates to us that the State withheld “important testimony at its command” until defendant had concluded his defense and then “open[ed] up its case anew.” People v. Crump, 5 Ill2d 251, 266,125 NE2d 615.

Defendant theorizes that Mrs. Smith’s testimony was critical to the State’s case because of the alleged weakness of Estelle’s identification testimony. Estelle identified defendant in a hospital emergency room while the latter was in custody of the police. It certainly is preferable to have a witness, independently, identify the guilty party from among a group of unknown persons. People v. Sanders, 357 Ill 610, 622, 192 NE 697. However, failure to follow this practice goes only to the weight of the evidence and is not necessary. People v. Boney, 28 Ill2d 505, 509, 192 NE2d 920; People v. Crenshaw, 15 Ill2d 458, 464, 155 NE2d 599; People v. Mikka, 7 Ill2d 454, 458, 459, 131 NE2d 79. Where, as here, the witness was present during the commission of the crime, had ample opportunity to observe his assailant, and was called upon to make the identification after a lapse of less than an hour from the time of the occurrence, his testimony, if otherwise credible, can be sufficient for conviction notwithstanding failure to employ an ideal identification procedure.

As another ground for error in admitting the testimony of Marcelletta Smith, defendant points out that she had been present during the trial, in violation of an order excluding witnesses. The record shows an extended debate between the Public Defender and the State’s Attorney as to the length of time the witness had been a spectator in the courtroom prior to her being called to take the stand. The State’s Attorney stated that he thought Mrs. Smith would testify immediately upon entering the courtroom, and that the recalling of defendant for further questions surprised him. In addition, the State’s Attorney was specific in his assertion that the witness was present during the proceedings for only five to ten minutes, during which time the defendant testified only as to matters concerning his drinking and details which occurred subsequent to his arrest; that she heard no testimony as to the commission of the crime itself, which was the subject of her own testimony. It is well settled that it is within the sound discretion of the trial judge to permit a witness to testify in rebuttal even though such witness may have been present during part of the trial, despite a court order excluding witnesses. People v. Weast, 30 Ill2d 160, 195 NE2d 725; People v. Miller, 30 Ill2d 110, 195 NE2d 694; People v. Chennault, 24 Ill2d 185, 181 NE2d 74. In view of the foregoing circumstances, we find no abuse of discretion by the trial judge in permitting this witness to testify.

(3) Finally, defendant contends that cross-examination of Marcelletta Smith for the purpose of showing bias or prejudice was unduly restricted. With this we cannot agree. The record shows that the trial judge permitted the Public Defender to inquire fully into the possibility that the witness had a lawsuit pending against the C.T.A. growing out of the abrupt stopping of the bus at the time of the attempted robbery. The witness admitted filing a claim against the C.T.A., but she stated that it was rejected. She denied that she was involved in any litigation over the matter. The Public Defender then questioned the witness as to the nature and treatment of her injuries, and asked: “When did you contact a lawyer on that claim?” This obviously dealt with a subject which had been fairly covered in the earlier cross-examination, and the trial judge did not commit error in sustaining an objection to the question.

Decision

The judgment and sentence of the Circuit Court are affirmed.

Affirmed.

DRUCKER, P. J. and McCORMICK, J., concur.

       Indeed, the record shows that defendant was incarcerated for six months (not six weeks) in the County Jail for carrying a knife.


author: MR. JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Isam Joseph Moore, a/k/a Isom Joseph Moore, and Henry Mallett, Defendants-Appellants.
    Gen. No. 49,958.
    First District, Fourth Division.
    July 29, 1966.
    Rehearing denied September 12,1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Truman Larry, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

On June 13, 1965, a jury found the defendant, Henry Mallett guilty of robbery. In a trial in the Circuit Court of Cook County the trial judge entered judgment and the defendant was sentenced to serve a term of 15 to 30 years in the Illinois State Penitentiary. The defendant appeals to this court, urging reversal on two grounds: that conviction rested on inadmissible evidence, and that the trial court improperly refused his attorney’s request to recall the State’s key witness for cross-examination.

From the record it appears there was evidence that on October 29,1963, at about 5:45 p. m., at least three armed men entered the Clark Super Food Mart, 3820 West 16th Street, Chicago, and robbed it of a sum of money in excess of $1,000, some money orders, and eight store keys. This property was taken from the store’s safe while the customers and employees of the store were held at gunpoint. The head cashier of the store saw only one man, whom she could not identify, and who, she testified, entered the office, ordered her to sit on the floor, then went into the safe and the money order drawer.

Van Watts, Jr., a stock clerk in the store, and the State’s chief witness against the defendant, testified that the police arrived after the robbery at about 6:00 p. m., and he gave a description of the robber to three policemen; and that on the same evening at about 8:00 p. m., he talked to two detectives from the Robbery Division assigned to the case. The next night at the police station Watts first learned that the name of one of the suspected robbers was Mallett; and he testified that a relative of his called to his attention that he knew Mallet from having gone to grammar school with him. Watts further testified that on November 16, 1963, he identified Mallett as one of the robbers; that Mallett stated he knew Watts and that Watts was from “Clark” [Clark Super Food Mart]; and that Mallett admitted he had participated in the robbery. This latter was corroborated by the testimony of one of the detectives.

The day after the robbery, at about 7:30 or 8:00 p. m., the police went to the Mallett apartment, where Mallett lived with his wife, Sandra, and arrested one Isam Moore. Mallett had left the apartment about 15 minutes before the police arrived. At the time there was no light in the apartment, due to the electricity having been turned off because of Mallett’s failure to pay the electric bill. When the police arrived they arrested Moore and went through the Mallett apartment. One of the detectives, testifying on behalf of the State, said they found eight keys in a brown envelope on the headboard of the bed in the bedroom. The police inventoried these keys, and on November 16, 1963, the detective who found them went to the Clark Super Food Mart where the keys were identified as belonging to the Mart. It also appears from the record that these identical keys were taken in the robbery. At the trial they were marked State’s Exhibit One, and the detective testified that they were the same keys he took from the Mallett apartment.

Mrs. Mallett testified on behalf of the defendant. Her. testimony was that Moore had free access to the Mallett apartment; that he frequently stayed there overnight and slept on a pull-out bed in the front room, and that he had stayed there the night before the police arrested him. She further testified that although Moore never slept in the bedroom he “could walk into any room he wanted to.” She testified that Moore had come into the Mallett apartment the evening he was arrested; that after his arrival and before the police came, Mallett had left.

At the close of the State’s case the State introduced the keys into evidence over the objection of defendant. Defendant’s counsel specified his objection which was that the State had failed to prove that the keys were in the exclusive possession of Henry Mallett and were therefore not admissible. In this court the defendant argues that the keys were the product of an illegal search and were therefore inadmissible. The objection to the admission of the keys was not made on that ground, and the question of illegal search appears for the first time in defendant’s brief in this court. During the trial the defendant did not make a motion to suppress, nor did he even raise a question as to illegal search and seizure of the keys. The question was not raised in the defendant’s post-trial motion for a new trial. In People v. Harris, 33 I112d 389, 211 NE2d 693, the court held that the question of an illegal search and seizure becomes important only if the evidence obtained thereby is properly objected to at the trial, and stated: “It is well settled that this court will not consider the question of illegal search and seizure, even though pursuant to an illegal arrest, where it has not been raised before the trial court.” In People v. King, 26 Ill2d 586, 188 NE2d 11, the court held that since the defendant’s claim of unlawful search and seizure was raised for the first time on appeal, and since the narcotics were admitted into evidence without objection, it was unnecessary to consider the legality of the search since no objection on that ground was raised upon the trial. In People v. Brengettsy, 25 Ill2d 228, 184 NE2d 849, the court cited and quoted from People v. Washington, 23 Ill2d 546, 179 NE2d 635, as follows: “‘An objection to evidence, based upon a specific ground is a waiver of objection on all grounds not specified.’ ” Also see People v. Sotos, 26 Ill2d 460, 187 NE2d 245; People v. Riley, 31 Ill2d 490, 202 NE2d 531; People v. Ikerd, 26 Ill2d 573, 188 NE2d 12.

With reference to the alleged error of the court in permitting the keys to be introduced in evidence over the defendant’s objection that they were not shown to have been in his exclusive possession, People v. Wheeler, 5 Ill2d 474, 126 NE2d 228, is controlling. In that case the court said:

“Defendant contends that error was committed in admitting in evidence the bag of money found in the hotel room jointly occupied by defendant and Williamson, because defendant was not in exclusive possession of the room or the money. In advancing this argument defendant apparently has in mind the requirements of the well-settled rule that the recent, exclusive and unexplained possession of stolen property by an accused person in and of itself gives rise to an inference of guilt which may be sufficient to sustain a conviction in the absence of other facts and circumstances which leave in the mind of the jury a reasonable doubt as to guilt. (People v. Bennett, 3 Ill2d 357; People v. Nixon, 414 Ill 125.) Before the rule may be invoked exclusive possession must be proved. (People v. Phelps, 388 Ill 618; People v. Powloski, 311 Ill 284.) But it is equally well settled that joint possession with another can be exclusive possession within the rule. People v. Phelps, 388 Ill 618; People v. Strutynski, 367 Ill 551; People v. Scholler, 385 Ill 93.
“Defendant admits that he had occupied the room with Williamson from the time of their arrival until they were apprehended. There is no evidence that anyone else was in the room from the time Beck saw the two go upstairs on the morning of December 14 until the room was searched. Defendant himself admits that he was in the room when Williamson entered with the money. It is probably true, as counsel for the People point out, that the rule has no application to the facts of this case, because here we have direct rather than circumstantial evidence of the crime, in addition to the evidence of possession, and therefore the evidence of possession is admissible for whatever weight the jury might give it, even though the possession is not completely exclusive. We believe that under either view the evidence was properly admitted.”

In the instant case there was direct, rather than circumstantial evidence of crime and of the identification of the defendant. This brings it squarely under the rule laid down in the Wheeler case.

The defendant also argues here that he was prejudiced when the trial court refused to permit his appointed counsel to recall a State’s witness for further cross-examination.

During the cross-examination of Detective Carr as a State’s witness the defense counsel requested and received police reports. The court then recessed the jury trial to permit defense counsel to study the reports. The trial was then resumed, and at the close of all the evidence the defendant offered all of the police reports [Exhibits 1, 2, 3, 4 and 5], which were received in evidence. The court ordered the police reports to be read to the jury. Defense counsel said he could not read them and withdrew the exhibits from evidence. He again offered them and they were again received in evidence. Defense counsel then agreed to let the Assistant State’s Attorney read the defense exhibits to the jury. After the Assistant State’s Attorney began to read defense Exhibit 1 aloud to the jury, defense counsel again withdrew the police reports from evidence. At the close of all the evidence defense counsel made a motion for a directed .verdict, which was denied. The court adjourned until the next morning.

When the court reconvened the following day defense counsel made a motion to reopen the case so that he could recall Watts and Detective Carr to the witness stand in order to cross-examine them with reference to the police reports. The court pointed out that the reports had been in evidence the day before, then withdrawn, and that the witnesses in the case were not now present. The defendant did not reoffer the reports. The reports do not appear in the record nor did the defendant make any offer of proof with reference to the reports. Under those circumstances there is nothing in the record to question the court’s refusal to permit the trial to be reopened and that Detective Carr and Watts be recalled for further testimony concerning the police reports. The reopening of a trial for further evidence is within the sound discretion of the trial court and the discretion will not be interfered with except where a clear abuse or prejudice to the defendant is shown. People v. Franceschini, 20 Ill2d 126, 169 NE2d 244; People v. Hill, 61 Ill App2d 16, 208 NE2d 874.

The defendant also argues that the defense counsel, by failure to cross-examine concerning the police reports, prejudiced the defendant. It is impossible for this court to say, without having the police reports before it, whether or not the defendant was prejudiced. In order to obtain a reversal on such a ground it must appear that the defendant was substantially prejudiced by the incompetency of counsel and that a different outcome would probably have resulted. People v. Kees, 32 Ill2d 299, 205 NE2d 729.

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

Affirmed.

DRUCKER, P. J. and ENGLISH, J„ concur.


text:
    Martha J. Penn, for the Use of Ernest Riley, Garnishor-Plaintiff-Appellee, v. Progressive General Insurance Company, a Stock Insurance Company and an Illinois Corporation, Garnishee-Defendant-Appellant.
    Gen. No. 50,964.
    First District, Fourth Division.
    July 29, 1966.

      Jonas, Goffen and Steffens, of Chicago (Howard T. Goffen, of counsel), for appellant.
    Marcus and Orr, of Chicago (Gale L. Marcus and Wallace W. Orr, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal from a judgment in favor of plaintiff and against the garnishee-defendant, and a cross-appeal from the denial of plaintiff’s motion to tax costs and attorney’s fees under section 41 of the Civil Practice Act.

An action was brought by the plaintiff, Ernest Riley, against Martha J. Penn to recover the property damage resulting from the alleged negligence of the latter in driving into his parked automobile. Judgment was entered in favor of plaintiff upon a verdict returned by the jury, and no appeal was taken therefrom. Garnishment proceedings were filed by plaintiff against Progressive General Insurance Company (hereinafter referred to as Progressive), Martha Penn’s liability insurer. Progressive admitted the existence of the policy but denied its liability thereunder (answering “no funds”) and asserted that Martha Penn failed to comply with the cooperation clause of the policy. However, this defense was rejected by the court.

According to the stipulated facts the accident occurred on July 3, 1964, within the effective period of the policy; subsequent thereto a proof of loss was executed by Martha Penn and submitted to the defendant pursuant to which it paid for the damages to her automobile (the automobile was financed); on July 7, 1964, Progressive addressed a communication to Martha Penn requesting an accident report; the report was completed and received by Progressive in the mail on July 20, 1964, in which Martha Penn stated that she was traveling north on Ashland Avenue talking to her passenger and the next thing she knew she hit the plaintiff’s parked automobile; no further attempt was made to contact Martha Penn until February 11, 1965, at which time Progressive’s claim department was instructed to obtain a signed statement from her; on March 15, after being informed by the claim department that Martha Penn was no longer living at 4213 North Sheridan Road (her address on the insurer’s records), the attorney for Progressive wrote a letter to her at the aforesaid address in which he requested that she contact him immediately; the letter was returned and marked on the envelope were the words “unclaimed” and “not in during delivery hours”; upon the return of that letter the claim department was again instructed to locate Martha Penn and was “attempting to find her through her place of her employment, International Pancake House, and the Waiters and Waitresses Union.” At no time did Progressive attempt to contact her through the company which financed her automobile. Progressive proceeded to trial in the action brought by the plaintiff against Martha Penn even though the latter was never located, after which the aforesaid^ judgment in favor of the plaintiff was entered.

In holding in favor of the plaintiff in the garnishment proceeding the court stated, first, that the defendant had waived its right to deny liability under the policy since it proceeded to trial; and, second, that in any event the defendant failed to prove its affirmative defense of noncooperation.

The circumstances surrounding the contention of waiver in the instant case are substantially similar to those in Durbin for Use of Ferdman v. Lord, 329 Ill App 333, 68 NE2d 537, in which the court held that there had been no waiver, stating at page 340 that:

[T]he insurer was obligated to defend plaintiff’s action, unless the insured had breached the conditions of the policy. At the time of the trial the insurer had no definite knowledge as to the reason why the insured failed to appear. There may have been circumstances, such as the death of the insured, excusing his absence from the trial and failure to communicate with the attorneys, in which event the attorneys would have been obligated to defend the action. They were not obliged to withdraw in order to preserve the insurer’s defense of breach of condition. The insured suffered no damage by the defense made in his behalf by the insurer, and the doctrine of waiver, or estoppel in pais, has no application.

We find that since Progressive had no knowledge as to why the insured failed to appear, it did not waive its right to deny liability under the policy on the ground of noncooperation.

With regard to its ruling that Progressive failed to prove its affirmative defense of noncooperation the court stated:

Further, I’m willing to rule on the basis of the evidence that the insurance company has failed to prove their affirmative defense of noncooperation on the evidence that I have heard; and that they could have done, I believe, more than they did do, plus the fact that there is no evidence that she ever received any notice at all from the company. She never got the chance not to cooperate. As a matter of fact, she was a very cooperative woman whenever given a chance to cooperate. According to the records, she was very prompt in sending in all notice and claims — Sending in her S. R 21 Form, sending in the summons, when received.
I can honestly say that this woman should not be prejudiced by the fact that she did move and the insurance company was unable to find her, though I imagine there is a point where they can just do so much.
. . . [T] here is no evidence they ever contacted the very obvious party that is right on the face of the policy — the finance company. If anybody knows where she lives, it is the finance company. You can believe me. There didn’t seem to be any efforts to go to Elmhurst Finance, who is the loss payee here, and determine from them where she was; and I imagine, if we set down, we could think of a few more things. . . .

There is no dispute but that the assertion of noncooperation is an affirmative defense. The burden of proof is upon the garnishee-defendant to establish by a preponderance of the evidence the various affirmative defenses raised in its pleadings. Gregory for Use of Cusimano v. Highway Ins. Co., 24 Ill App2d 285, 164 NE2d 297. The court in that case, quoting with approval from Pennsylvania Threshermen & Farmers Mut. Cas. Ins. Co. v. Owens, 238 F2d 549, stated at page 300:

“The problem of non-cooperation has a dual aspect: not only what the assured failed to do, but what the insurer on its part did to secure cooperation from an apathetic, inattentive, or vanished policyholder, must be considered. Liability insurance is intended not only to indemnify the assured, but also to protect members of the public who may be injured through negligence. Indeed, such insurance is made mandatory in many states. It would greatly weaken the practical usefulness of policies designed to afford public protection if it were enough to show mere disappearance of the assured without full proof of proper efforts by the insurer to locate him . . . .”

In the instant case the insurance company did not notify Martha Penn when she completed the accident report that it may be necessary to procure a statement from her at a later date with regard to the accident or that she may be required to appear for trial, nor did it contact the finance company in an effort to ascertain her address. We would point out that in every instance when Progressive did request something of Martha Penn she always complied therewith.

We find that since Progressive did not exercise a reasonable degree of diligence in ascertaining the whereabouts of Martha Penn, the court properly found that Progressive failed to prove its affirmative defense of noncooperation.

Plaintiff also filed a motion to tax additional costs and attorney fees under section 41 of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 41) which provides:

Allegations and denials, made without reasonable cause and not in good faith, and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court at the trial.

Under the circumstances of this case we find that plaintiff’s denial of liability was not made without reasonable cause or in bad faith and therefore the trial judge did not abuse his discretion in denying the plaintiff’s motion.

Therefore the judgment of the trial court is affirmed.

Affirmed.

ENGLISH and McCORMICK, JJ., concur.